During the month of April, 1921, one Gipson, of Frankfort, S. D., sent a written order to the plaintiff in this action at Minneapоlis, Minn., for 10 road scrapers, to be paid for in 60 days. On receipt of this order, plaintiff forwarded to Giрson a conditional sales contract, providing for the sale of said scrapers on 60 -days’ time,, but providing that title thereto should remain in the plaintiff until the purchase price was fully paid. Gipson еxecuted this contract, together with his note for the purchase price of the scrapers, payable in 60 -days, and- forwarded said note and contract to- the plaintiff. Thereupon said sсrapers were shipped to Gipson. Immediately upon their arrival at Frankfort, the defendant in this аction, who had a judgment against Gipson, caused the levy upon and seizure of said scrapers, undеr an execution issued on said' judgment. The conditional sales contract had not then been, and never since has been, filed in the offices of the register of deeds, as required by the provisions of sеction 6, c. 131, Laws of 1919. But the deputy sheriff, who- made the levy, knew 'before he made said levy or seizure that Gipson did not own the scrapers, and knew that there was a written contract in existence, relаtive to the ownership thereof. The scrapers were sold under the said execution, and purсhased by the execution creditor, defendant herein. Plaintiff then commenced this action for thе recovery of the possession Of said scrapers. The case
Some contention is made by appellant that the scrapers in question were settled for 'by giving* оf the promissory note by Gipson to plaintiff, and that plaintiff retained no further title therein. This contentiоn is without merit. It plainly appears from the terms of the contract that the note was intended merely as evidence of the indebtedness, and that title to the property was to be retained by plaintiff as security for the payment of the indebtedness. Harvester Co. v. Pott, 32 S. D. 82,
There is no evidence that thе defendant bad actual knowledge of the existence of the contract, and it is claimed thаt the deputy who <m|ade the levy and seizure had no such knowledge prior to making the seizure, but this claim is not sustained by the record. The evidence showed, and the court found as a fact, that such deputy sheriff did have knowledge of the contract, or at least sufficient knowledge to have put him on inquiry that would have led to actual knowledge of the contract. This leaves but a single' question to be determined. Gan the knowledge of the officer who made the levy be imputed to the execution crеditor who was the purchaser at the sale?
It is the contention of the respondent that in making the levy and seizure the deputy sheriff was acting" as agent for the execution creditor, and that the knowledge of the agent was the knowledge of the principal, the execution creditor, under the provisions of section 5 of the Conditional Sales Act, being section 5 of chapter 137, Laws of 1919. This section reads as follows:
“Every provision in a conditional sale reserving property in the seller, shаll be void as to any purchaser from or creditor of the buyer, who, without notice of such provision, purchases the goods or acquires by attachment or levy a lien upon them, before the contract or a copy thereof shall be filed as hereinafter provided, unless such contrаct or copy is so filed within ten days after the making of the conditional sale.”
The question 'here presented has not heretofore been passed upon by this court, but such authority as we are able to find on the subject supports the view that the officer making a levy under
We hold that -under the facts disclosed by thе record in this case the appellant should be charged with knowledge, prior to the levy or seizure, that said Gipson was not the owner of said scrapers when the levy was made, and that said seizurе was not authorized by the Conditional Sales Act.
The judgment and order appealed from are affirmed.
Note — Reported in
On notes given for purchase money on conditional sale as payment for debt, see note in 35 L. R. A. (N. S.) 90.