Summary
In Mitchell v. Williams, 155 Miss. 343, 124 So. 430, 431, the Court held: "It is argued for the appellant that the reserved title contract is in effect only a mortgage, and as it was not recorded in the county records, and as Mitchell had no notice of its existence, that he is protected as a bona fide purchaser.
Summary of this case from Mid-Continent Fin. Corp. v. GrantOpinion
No. 28087.
November 11, 1929.
1. CHATTEL MORTGAGES. Sales. Reservation of title to automobiles sold until all payments were made held not "mortgage," but "conditional sale," not required to be recorded; purchaser of automobile from conditional buyer buys at his peril, though conditional sale contract is not recorded.
Where a dealer selling automobiles upon the deferred payment plan reserves title to the property until all of the payments are made, such instrument is not a "mortgage," but a "conditional sale," and is not required to be recorded, and the purchaser of the automobile from the conditional buyer buys at his peril.
2. SALES. Conditional seller is not estopped, as against subsequent purchaser, from asserting claim against property conditionally sold by mere delay in seeking to repossess automobile after conditional buyer's default; conditional seller, without knowledge of resale of automobile, was not affected by transaction.
Where a person takes a conditional sale contract, reserving title until payments are made, and a person subsequently buys from the buyer, the seller under the original contract is not estopped from asserting his claim against the property by mere delay in taking an action to repossess the car after default. Where such conditional seller did not know, at the time the car was resold, that the same was being done, he is not affected by such transaction.
3. JUSTICES OF THE PEACE. That property stated in affidavit to be worth less than two hundred dollars may be worth more does not defeat justice court jurisdiction without proof of fraudulent undervaluation.
Where a person makes affidavit in a justice of the peace court that property is worth less than two hundred dollars, but where property may be worth more than two hundred dollars in fact, such affidavit does not defeat the jurisdiction of the justice of the peace court, unless proof be made that it was knowingly undervalued for the fraudulent purpose of giving the justice of the peace jurisdiction.
APPEAL from circuit court of Pearl River county. HON. J.Q. LANGSTON, Judge.
J.M. Morse, Jr., of Poplarville, and W.E. Morse, of Jackson, for appellant.
It may be stated as a general rule, that an instrument executed by an agent in a manner evidencing a clear intention to contract for the principal, as inferred from the body, "or signature of the instrument" is generally valid and binds the principal and does not bind the agent.
Mulford v. Rowland, 45 Colo. 172, 100 P. 603; Ga. Ala. Business College v. Co., 8 Ga. App. 348, 69 S.E. 34; Avery v. Doughtery, 102 Ind. 443, 2 N.E. 123; Deming v. Bullitt, 1 Blachf. 241; Copeland v. Hewitt, 96 Me. 525, 52 A. 36; McCline v. Herine, 70 Mo. 18, 35 Am. R. 40 Y; Dubors v. Co., 4 Wend. 285; Donovan v. Welsh, 11 N.D. 113, 90 N.W. 262; McCuary v. McCorkle (Ch. App.), 54 S.W. 53; Eckhart v. Reidel, 16 Tex. 62; Shanks v. Landcaster, 5 Gratt. 110; Winding v. Co., 78 S.E. 384; 2 C.J., sec. 337, p. 683.
In the present case the only reasonable conclusion is that plaintiff signed the original contract as agent for the Gulf Chevrolet Company and not as principal.
Where one who owns or has an interest in personal property with full knowledge of his rights, suffers another to deal with it as his own by selling or pledging it, or otherwise disposing of it, he will be estopped to assert his title or right as against a third person who has acted on the faith of and has been misled by his acquiescence.
21 C.J., sec. 158, B.B. Personal Property; Wilkinson v. Love (Miss.), 115 So. 707.
The defendant was a bona-fide purchaser within the meaning of sections 2444 and 2446, Hemingway's (1927) Code.
McLarty v. Ashmore, 128 Miss. 735.
The Mississippi court has uniformly held that "the reservation of title is but as security for the purchase price; and, if the property is recovered by the seller, he must deal with it as security, and with reference to the equitable rights of the purchaser."
Burnley v. Tufts, 66 Miss. 48, 6 So. 627; Dederick v. Wolfe, 68 Miss. 500; Tufts v. Stone, 70 Miss. 54, 11 So. 792; McPherson v. Lbr. Co., 70 Miss. 649, 12 So. 857; Ross-Mehan Foundry Co. v. Ice Co., 72 Miss. 615, 18 So. 364; Rogers v. Whitehead, 127 Miss. 21, 89 So. 777; Bankston v. Hill, 134 Miss. 288, 98 So. 689; Ketchum v. Brenan, 53 Miss. 596.
The whole theory of conditional sales as propounded by the Uniform Conditional Sales Act is that a conditional sale is in its essence like a chattel mortgage.
Williston on Contracts, 737; Bogert, vol. 2 (a), Uniform Laws Annotated, p. 11; Schneider v. Daniel, 131 N.E. 816 (1921).
John C. Street, of Poplarville, for appellee.
Appellant claims to be an innocent purchaser, but the rule is well settled in this state that an innocent purchaser is not protected where personal property is sold and the seller retains title.
The affidavit in replevin determines the jurisdiction of the court so far as it concerns the value of the property sued for unless the plaintiff knowingly undervalued or overvalued it for jurisdictional purposes.
Ball v. Sledge, 82 Miss. 749, 35 So. 447.
This court has held that under a contract of conditional sale of the kind shown in this case, the property may be recovered by replevin even against an innocent purchaser.
Harrison v. Broadway Motor Co., 128 Miss. 766, 91 So. 453; Burkhalter v. Mitchell, 107 Miss. 92, 64 So. 967; United Motor Truck Co. v. Southern Securities Co., 95 So. 639, 131 Miss. 664; Richton Overland Co. v. McCormick Motor Car Co., 114 So. 387, 148 Miss. 616.
Argued orally by W.E. Morse, for appellant, and by John C. Street, for appellee.
This litigation originated in the justice of the peace court, where G.H. Williams sued out a writ of replevin for the possession of a car which had been sold to one E.A. Smith on deferred payment plan; title being reserved in the seller until complete payment had been made. At the time of the sale to Smith, G.H. Williams, the plaintiff, was engaged in the business of selling automobiles in the city of Bay St. Louis, Miss., under the trade-name of the Gulf Chevrolet Company. Shortly after the sale to Smith by Williams, Williams sold his business to another person by the name of Frierson, and it appears that, after Frierson had bought the Chevrolet business from Williams, Smith went to Frierson and traded the car purchased from Williams in as part payment for another car, without disclosing the reserved title and the deferred payments yet to be paid on the car. Thereafter Frierson sold to Harve Mitchell the car upon which Williams had a reserved title, and it appears that Mitchell had no notice of the fact that Williams had a reserved title to the car for the unpaid purchase money, or any notice that the car was not paid for. Several months after Mitchell bought the car from Frierson, Williams sued out the writ of replevin and seized the car. In the affidavit for replevin, Williams valued the car at one hundred seventy-five dollars but at said time there was two hundred eighty dollars still due from Smith upon the purchase price of the same.
It appears that Frierson, in selling the car to Mitchell, used the name of the Gulf Chevrolet Company, and at other times he used the name of Frierson Chevrolet Company for his business. There is no evidence that the Gulf Chevrolet Company was a corporation, but, on the contrary, the testimony of Williams is that he was doing business as an individual under that trade-name. The judgment was for Williams in the court below, from which this appeal is prosecuted.
It is argued for the appellant that the reserved title contract is in effect only a mortgage, and as it was not recorded in the county records, and as Mitchell had no notice of its existence, that he is protected as bona-fide purchaser. This contention is not sustained by the law of this state. See Harrison v. Broadway Motor Company, 128 Miss. 766, 91 So. 453, 25 A.L.R. 1148; Burkhalter v. Mitchell, 107 Miss. 92, 64 So. 967; United States Motor Truck Company v. Southern Securities Company, 131 Miss. 664, 95 So. 639; Richton Overland Company v. McCormick Motor Car Company, 148 Miss. 616, 114 So. 387.
It is next contended that the plaintiff is estopped to maintain the suit as against Mitchell because, after learning that Mitchell had possession of the car, he did not take prompt steps to secure its possession, but waited several months to do so, during which time Mitchell paid Frierson for the car. There is no showing that Williams had knowledge, at the time that Mitchell bought the car from Frierson, that he was doing so, or that Frierson was in possession of the car, with knowledge of the outstanding payments. In other words, there is nothing to show that Williams did anything to the injury of Mitchell when Mitchell was purchasing the car. Under the cases above cited, Mitchell was bound to know at his peril the facts of the outstanding title. The doctrine of caveat emptor applies to this transaction. We do not think he was estopped, under the facts in this record, to maintain the suit.
It is next contended that the car was of greater value than two hundred dollars; and, as the suit was instituted in a justice of the peace court, that the circuit court should have dismissed the suit because of fraud in securing the jurisdiction or action of the justice of the peace court. Proof from a number of witnesses was that the car was worth about three hundred or three hundred fifty dollars, and that the debt or unpaid purchase price outstanding was two hundred eighty dollars. No motion was made, however, to dismiss it on that ground, and no proof was offered to show that the plaintiff willfully undervalued the car for the fraudulent purpose of giving the justice of the peace court jurisdiction. Williams, however, testified that in his opinion the car was worth, at the time of the institution of the replevin, suit, less than two hundred dollars. The record does not make a case of knowingly and purposely undervaluing the property for the purpose of giving jurisdiction to the justice of the peace court, and this, we think, is necessary for the position to be sustained.
The judgment of the court below will therefore be affirmed.
Affirmed.