Opinion
No. 28843.
October 13, 1930.
1. SALES. Unrecorded conditional sale of automobile by husband to wife is valid against third person, unless latter has valid claim, in absence of sale ( Hemingway's Code 1927, section 2190).
Code 1906, section 2522, Hemingway's Code 1927, section 2190, provides that transfer of goods and chattels between husband and wife shall not be valid as against any third person, unless the transfer or conveyance be in writing and acknowledged and filed for record as a mortgage or deed of trust, and further provides that possession of property shall not be equivalent to filing and that, to affect third persons, writing must be filed for record.
2. SALES. Assignee of unrecorded conditional sale contract between husband and wife and seller's interest held entitled to possession as against third person, unless latter's possession is under superior claim ( Hemingway's Code 1927, section 2190).
Assignment of conditional sale contract covering automobile purported to transfer to assignee all right, title, and interest therein of seller, his successors or assigns, and was not merely an assignment of conditional sale contract.
APPEAL from circuit court of Jones county, Second district. HON.W.J. PACK, Judge.
Stevens Heidelberg, of Hattiesburg, for appellant.
The rule is so thoroughly established in Mississippi as to be elemental with us that the owner of personal property may make a conditional sale thereof, reserving title until the payment of purchase price; that such a retention of title may be made not only in writing, but orally; that the holder of the retained title may validly sell and assign the same; that the contract retaining the title is not required to be recorded, and that such a retention of title is good as against even innocent purchasers of the property from the original vendee, and that as to such subsequent purchasers, the rule of caveat emptor applies.
Ross-Meehan Brake Shoe Foundry Co. v. Pascagoula Ice Co. et al., 72 Miss. 608, 18 So. 364; Hunter v. Crook, 93 Miss. 812, 47 So. 430; Parker v. Payne, 95 Miss. 375, 48 So. 835; Burkhalter v. Mitchell, 107 Miss. 92, 64 So. 967; U.S.F. G. Co. v. Northwest Engineering Co., 146 Miss. 476, 112 So. 580; U.S. Motor Truck Co. v. Southern Securities Co., 131 Miss. 664, 95 So. 639; Bankston v. Hill, 134 Miss. 288, 98 So. 689; Harrison v. Broadway Motor Co., 128 Miss. 766, 91 So. 453.
Section 2190, Hemingway's Code 1927, does not render absolutely void all unacknowledged and unrecorded conveyances between husband and wife. They are perfectly good as between the parties. They are void only as to third person. The expression third persons does not apply in all its literal significance as to embrace all persons whatsoever, without regard to their interest in the property conveyed or the possibility of their being injuriously affected by the transfer. The statute includes only such third persons as are in a position to be prejudiced by the secret conveyance.
Grace v. Phoenix Insurance Co., 94 Miss. 201, 48 So. 298; Self v. King, 124 Miss. 874, 87 So. 419.
The assignment of the conditional sales contract passes to appellant the conditional sales contract and all of the assignor's rights thereunder, but also expressly transfers to appellant all right, title and interest of the assignor in and to the property itself.
Stockstill v. Brooks, 107 So. 888; Smith v. Sparkman, 55 Miss. 652; 30 Am. Rep. 537.
Deavours Hilbun, of Laurel, for appellee.
In Section 2190, Hemingway's Code of 1927, the evil sought to be guarded against was the frequent perpetration of frauds by pretended transfers of property between husbands and wives, and the great difficulty of detecting them. Such was the magnitude of the evil that the lawgivers sought at once to extirpate it by declaring void, as to third persons, every such conveyance, whether made bona-fide or mala-fide, unless the same is in writing and spread at large upon the public records of the country. The only way to obviate this difficulty and make the law effective is to enforce it exactly as written, by holding that wherever the rights of any third person intervenes, whether he be creditor or purchaser, and whether his rights accrued before or after the alleged transfer, no proof of a transfer made in any other method than in that pointed out by the statute shall be received.
Gregory v. Dodds, 60 Miss. 552; Montgomery v. Scott, 61 Miss. 410.
Since the contract under which appellant received its title was not valid, it did not receive a valid title and cannot maintain this action.
Black, Todd Co. v. Robinson, 62 Miss. 72; Arnold v. Elkins, 67 Miss. 675, 7 So. 522; Watkins v. Duvall, 69 Miss. 364, 13 So. 727; Snider v. Udell Woodenware Company et al., 74 Miss. 353, 20 So. 836; Williams v. Yazoo M.V.R. Co., 82 Miss. 659, 35 So. 169; Austin Clothing Co. et al. v. Posey, 106 Miss. 448, 64 So. 5; McCabe v. Guido, 116 Miss. 858, 77 So. 801; McCrory v. Donald, 119 Miss. 256, 80 So. 643; Stockstill v. Brooks, 107 So. 888.
The appellant sued the appellee in replevin for the possession of an automobile. In support of its claim thereto it introduced evidence disclosing that the automobile was owned by Myer Shelby and sold by him to his wife. This sale was evidenced by a written unrecorded conditional sale contract signed by both Shelby and his wife describing several promissory notes executed by Mrs. Shelby covering the purchase money, reserving title to the automobile in Shelby until all the notes were paid, and providing that on default of the payment of any of the notes all of them should become due. These notes and the contract were assigned for value by Shelby to the appellant. This suit was instituted after default in the payment of one of the notes.
When the appellant rested its case, its evidence was excluded, and the jury were directed to, and did, render a verdict for the appellee.
The ruling of the court below is sought to be upheld under section 2522, Code 1906, Hemingway's Code 1927, section 2190, which provides that: "A transfer or conveyance of goods and chattels, or lands, or any lease of lands, between husband and wife, shall not be valid as against any third person, unless the transfer or conveyance be in writing and acknowledged and filed for record as a mortgage or deed of trust is required to be; and possession of the property shall not be equivalent to filing the writing for record, but, to affect third persons, the writing must be filed for record."
This contention will be considered in two aspects:
First, we will assume for the purpose of the argument that the appellant's right to the automobile rests upon the mere conveyance thereof from Shelby to his wife, and the execution of a lien thereon by the wife to secure the purchase money thereof.
An examination of the cases in which this court has heretofore dealt with this statute will disclose that the third persons against whom an unrecorded conveyance between husband and wife is void are such as claim an interest in, or right to, the property conveyed through or against the husband or wife, as the case may be, which claim would be valid in event the conveyance had not been made. Groce v. Phoenix Insurance Co., 94 Miss. 201, 48 So. 298, 22 L.R.A. (N.S.) 732. In this aspect of the case, therefore, the unrecorded conveyance of the automobile is valid against the appellee, unless and until it shall appear that his possession of the automobile is based on a claim thereto which would be valid had the sale from Shelby to his wife not been made.
Second, but the appellant's claim to the automobile does not rest upon a mere sale thereof by Shelby to his wife, and the execution of a lien thereon by the wife. The assignment of the conditional sale contract by Shelby to the appellant recites that: "The foregoing conditional sale contract between the buyer mentioned therein and the undersigned, the seller, and the property therein described, and all the right, title and interest therein of the undersigned are hereby sold, assigned and transferred to Federal Credit Company, its successors or assigns." This language, it will be observed, includes not only the conditional sale contract, but also the right, title and interest of Shelby in the property therein described. Shelby, therefore, not only assigned the conditional sale contract to the appellant, but transferred to it any interest he might have in the automobile, which transfer must prevail against the appellee unless and until it shall appear that he is in possession of the automobile under a claim thereto superior to that which Shelby transferred to the appellant.
Reversed and remanded.