31 Tex. 245 | Tex. | 1868
—Upon a note executed for the purchase-money for a steam-engine, saw-mill, and fixtures, suit was instituted in the district court of Guadalupe county against the maker of the note and purchaser of thé engine, &c., and upon an allegation in the petition that a lien in parol was retained upon the property by the seller at the time of the contract of sale, a subsequent purchaser from the original buyer, the appellant in this record, was made a party defendant, and that alleged lien sought to he enforced against the property in his hands.
The facts of the case are these: William Means, on the 26th of February, 1856, executed and delivered to William P. Hardeman the following note:
“$553. One day after date I promise to pay William P. Hardeman or hearer five hundred and fifty-three dollars, with interest from the 1st of September last. Value received. William Means.
“February 26, 1856.”
This note was indorsed—
“Pay Leo Hardeman. Wm. P. Hardeman.”
At the spring term of the district court, 1859, the assignee brought suit upon this note, thus indorsed, against the obligor and the assignor, and against Thomas A. Gay, a subsequent purchaser of the steam-engine, saw-mill, and fixtures, which were charged to have been the consideration for the note, and alleging that said Gay had full notice at the time of his purchase that the seller of the steam-engine, saw-mill, and fixtures had retained a lien at the time of
The proof conduced to show that Gay had some knowledge of the notes being executed for the purchase-money, and that it was not paid; at least he had this knowledge before he had made the payment on his purchase. But nothing appears to show that he had any knowledge of the existence of any lien, either express or implied, upon the' property which he .bought, nor is the court able to perceive from any proof in the record that any such lien existed.
It seems to have been considered by the district judge that a parol reservation in the sale of a personal chattel constituted a lien in law, even against third parties. We do not so understand the law. It was not so at the common law, nor is it so by any of the statutes of the state. Eor do we believe it is so by the statutes of any of the American states in the present enlightened period of the commercial policy of the world. What constitutes an actual sale of personal property? It is an agreement between the seller and the buyer upon the consideration or price, either in cash or upon a stipulated credit, and a delivery of the property. When so delivered, the sale is consummated and the right of property becomes absolute in the buyer, and the seller has no longer any more control over it than the rest of mankind. But it is pretended that at the time of the sale a lien was reserved or retained by the seller. This was impossible by the common law in regard to personal property, because an actual or constructive delivery was
There are various orders of liens. Though generally arising by operation of law, they may be created by express contract. As already intimated, they .cannot arise upon a sale of personal property by express agreement, unless that agreement be reduced to writing, and is duly registered in the manner prescribed by law. There may be liens upon the personal property of another, when it is in the possession of the party for whose benefit the lien obtains. Such are the familiar examples of common carriers, inn-keepers, tradesmen, salvors from the perils of the sea, and in cases where a party holds property against a future contingent claim or damages. In all such cases, to establish the lien, a party must have actual or constructive possession of the property. But as soon as he surrenders that possession, the lien is gone forever. This principle, however, in liens upon real estate, for the reason already given, does not obtain. Hence.the vendor’s lien upon land for the unpaid purchase-money, no matter who may be in possession of it. This difference is founded on the obvious distinction in the nature, character, and uses of the two species of property. If, in addition to this reasoning upon the general principles of the law, legislative authority be wanting to give it sanction, it will be found in the last clause of the 2d section of the statute .of frauds and fraudulent conveyances, (Paschal’s Dig., Art. 3876,) which is in these
Ordered accordingly.