Gerow v. Castello, 11 Colo. 560

Gerow v. Castello

11 Colo. 560 | Colo. | 1888

Rising, C.

The written contract, executed by Gerow and Fetter, is not a chattel mortgage or a substitute for one. None of the requirements of the law regulating the execution of such instruments were observed in its *563execution. Lucas v. Campbell, 88 Ill. 447, 450. For this reason the provisions of the chattel mortgage act have no application to this case. The contract shows a conditional sale of the piano therein mentioned. Murch v. Wright, 46 Ill. 487; Lucas v. Campbell, 88 Ill. 447. Such conditional sale of the piano gave to the vendor the right to maintain an action against said vendee for the recovery of the possession thereof upon her failure to comply with the conditions of such .sale; and the question presented for determination is whether such vendor can maintain such action against a purchaser who purchased with the full knowledge of the nature and character of the title which said Fetter had at the time of such purchase. None but bona ficle purchasers are protected against the claims of any one having an interest in the property adverse to the interest of the vendor, and, if a purchaser purchases with notice of such interest, he is not a bona fide purchaser. Wade, Notice, §§ 67, 71; Ketchum v. Watson, 24 Ill. 592; McKee v. Mining Co. 8 Colo. 392, 395. Appellee having purchased the piano with full knowledge of the nature and character of her vendor’s title thereto, and fraudulent conduct in the premises, and of appellant’s interest in the property, cannot be held to he a purchaser in good faith, so as to protect her against an action brought by appellant to enforce his rights and to protect his interest therein. The judgment should be reversed.

Stallcup, 0., concurs. De France, 0., dissenting.

Per Curiam.

For the reasons assigned in the foregoing opinion the judgment of the court below is reversed.

Reversed.