94 Tenn. 273 | Tenn. | 1895
Complainants sold defendant an engine, boiler, and sawmill for $1,100, of which $275 was paid in cash, and for the remainder notes were executed, falling due in installments. These
The Chancellor gave judgment against the defendant for the possession of the property, except the added attachments, and as to this gave judgment for $80 against complainants, and from this ■ there is no appeal. The Chancellor dismissed the cross lull so far as it sought to recover back the cash payment of $275, and defendant appealed, and has assigned as error this action of the Chancellor in refusing to require the purchase money to be refunded. Other questions originally raised have been eliminated, and need not now be noticed.
Appellant bases his right to recover upon the construction of the Act of 1889, Chapter 81, page 117, Sections 1 and 4. This Act provides, in substance, that where any personal property is sold upon condition that the title remain in • the seller
This Act was construed in Cowan v. Singer Manufacturing Co., 8 Pickle, 376-384, and that case is relied upon as decisive of this. In that case it was properly held that the duty of the original vendor to resell the property upon reclamation is positive, and failure to perform that duty fixes upon him absolute responsibility to the purchaser for the purchase money previously paid.
The Act clearly contemplates two cases — one where the vendor retakes possession by consent of the purchaser, and the other where it is necessary to regain the possession by process of law in the absence of consent. This can be done by an action of replevin, and if the complainant’s right, under his replevin, to hold the property is not controverted, as well as when possession , is gained by consent, it is the duty of the vendor to at once proceed, under the statute, to make the sale required. But where the right to retain the possession under the replevin suit is controverted and litigated, the vendor cannot be said to have regained
In this case, although complainants had taken possession under their replevin writ, they must be considered as holding that possession .to await, in the first instance, the result of that replevin; and, until their right to possession is conceded or fixed by the Court, they are under no obligation to pro- - ceed to sell under the statute, nor could they properly do so.
Complainants’ right to retake possession under their contract and the law in such cases is plain, and, in that respect, the' Chancellor’s decree is correct. He was also correct in dismissing the cross bill and denying a recovery to defendant of the cash paid by him during the pendency and litigation of the replevin suit. The decree as to the eighty dollars is • conceded to be correct.
Let the decree be affirmed, with costs.