2 Posey 644 | Tex. Comm'n App. | 1879
Opinion.— The only questions that .seem to require consideration, or, indeed, to which the appellants’ counsel appear, in their brief, to attach importance, are, whether the contract between the plaintiffs and Enfield was, in legal effect, a conditional sale, or whether it was a chattel mortgage; and also whether a demand by the plaintiffs on defendant for the property, before suit, was necessary.
Whilst the delivery of possession of personal property, under a contract for its purchase, often, with other facts, affords conclusive evidence of a final and consummated change of right, title and ownership, in other instances does not affect the question of transfer of title, nor is conclusive upon the right to possession of it. “ A sale is a transfer of the absolute title to property for a certain agreed price.” Story on Sales, sec. 1. “ A sale takes place only when there is a transfer of the title to property for a price.”- Ibid. The transfer may be complete without the delivery; as, where the seller has performed all that is required of him by the terms of the contract, and delivery alone remains to be made, the property vests in the vendee, and subjects him to the risk of any accident which may befall the subject of the sale. Id., sec. 300. “ It is not necessary for the seller to deliver the goods to the buyer in order to transfer the title, since ^he right of property does not depend upon the actual possession.” Id., sec. 300.
Although, therefore, the seller has a right of lien upon them, and cannot be forced to surrender possession until
The appellant insists that the legal effect of the contract was to make it a chattel mortgage, and not a conditional sale.
It is said in a note to the above quoted text (note o\ that “ it has been decided that such conditional sales are not, in effect, chattel mortgages, and therefore void, because not i ecorded.” Buson v. Dougherty, 11 Humph., 50. “ And where, upon a sale and delivery, it was agreed that the vendor should retain a lien upon the property until the price was paid, it was held that this agreement of the parties created a valid lien in the vendor against the vendee and purchasers from him, and that such lien was not within the purview of the statute requiring mortgages of chattels
For cases deciding upon the construction of contracts of sale, to determine whether the effect was to render it a sale or a chattel mortgage, under terms of reservation of title by the vendor, quite similar to the contract in this case, reference is made by us to Grant v. Skinner, 21 Barb., 582; Brewster v. Baker, 20 Barb., 368. Held in those cases to be conditional sales, and not chattel mortgages, upon the force given to the terms of the contract, reserving to the vendor the title until the performance of conditions, notwithstanding the delivery of the possession of the property. See, also, Strong v. Taylor, 2 Hill, 326; Herring v. Willard, 2 Sand. (N. Y.), 418.
The plaintiffs, therefore, in this case were the owners of the property. Enfield’s notes bad long been due and unpaid at the date of the institution of this suit; and the defendant, acquiring possession of the property with full notice of the plaintiffs’ claim of right in the property, acquired no better or higher title than did the original vendee. The'plain tiffs, therefore, having the right of ownership, had the right to assert their right to possess and enjoy their property, unless they were precluded, under their contract, from doing so at the time of the institution of their suit.
The fair interpretation of the contract and the accompanying act of delivery of the property entitled the purchaser to the possession of it as against the seller, at'least, until the maturity of the first note. The maturity and nonpayment of both of them would entitle the seller and real ' owner to resume his dominion over his property.
Judgment affirmed.