51 So. 994 | Ala. | 1910
Lead Opinion
The action is in detinue by appellant against the appellee. Plaintiff’s titled rested solely, as shoAvn by all the evidence, upon a conditional sale to a third party, by AAdiich sale the property was delivered to the purchaser and kept in trade as a part of a general stock of goods. The contract of sale was in writing, but not recorded as required or provided for by section 3394 of the Code. The purchaser was duly and legally adjudicated a bankrupt, and the entire stock of goods, including the property in question, was
There are other errors assigned] but they are not insisted upon, and, if they were, they would be unavailing to reverse the case on the undisputed evidence, even upon the general issue. The statute renders plaintiff’s claim void under its own evidence.—Brandon Co. v. Bostick, 126 Ala. 247, 28 South. 705; T. C. I. & R. Co. v. Gardner, 131 Ala. 599, 32 South. 622.
The judgment is affirmed.
Affirmed.
Rehearing
ON APPLICATION POR REHEARING/
It is insisted by the appellant, in application for rehearing, that we should now construe the statute (section 3394 of the Code) and decide the question as to the sufficiency of plea 2] that is, whether or not the purchasers at judicial sales are within its protection. The language of the statute is that the conditional sale is void as against purchasers for valuable consideration, mortgagees, and judgment creditors without- notice thereof, unless the contract is in writing and recorded, etc.
The propositions of law that the trustee is not a.purchaser’, and that he acquires only the title of the bankrupt, and can sell only such title as he has, and that the rule of caveat emptor applies to judicial sales, are sound; yet the conclusion does not follow that a purchaser at a bankrupt or judicial sale is not a purchaser, though the trustee or receiver is not, and if he in fact purchases at such sale without notice, actual or constructive, the statute clearly makes this conditional sale void as to him. The statute is not limited or restricted to purchasers at voluntary sales made by the vendee; but includes judicial or execution sales of the property when the process is directed against the vendee, and we know of no reason why a purchaser at a bankrupt sale is not protected as well as a purchaser at any other judicial sale. It is certainly a judicial sale, made and ratified by the court. . A voluntary sale by the vendee, of course, passes no title to the subvendee, except that of the original vendee. It passes no more nor less than an execution sale against him would do, except that there may be a warranty in the one case, but there is none in the other.
But for this statute the purchaser or subvendee would acquire no title as against the original vendor who retained the title, no matter whether the purchase
The application is overruled.