Warner v. Roth , 2 Wyo. 63 ( 1879 )

Peck, J.

On the third day of March 1877, the plaintiff and C. F. Unfug & Bro. made at Cheyenne in this territory a written contract of sale by the former to the firm, of a safe upon the following terms: The safe to be shipped at Cincinnati by rail, and delivered to the firm at Cheyenne, and to be paid for by its note, due in four installments of forty dollars each, and severally on the 15th days of May, July, August and October of that year, less the freights, which the firm was to pay; the note to be forwarded to Earner at Rochester, New York, at the end of twenty days from the date of the invoice; if not so forwarded, the price to mature in thirty days from date of the bill; the title of the safe not to pass until payment had been so made, and in the meantime the safe to remain the property of Warner who, in case of default in payment was to have the right to re-possess himself of, and to remove the safe without legal process. The contract was neither acknowledged nor filed with the county recorder. In accordance with the contract, the safe was delivered to C. F. Unfug & Co., at Cheyenne, in March of that year; they paid the freights and the first installment of $40, and afterwards and on August 4th of the same • year made an assignment for the benefit of their creditors, embracing the safé, and delivered it under the assignment to the assignees, who, as such, sold and delivered it to Roth, the latter purchasing and taking possession, without notice of the contract existing between the firm and Warner, or that anything was due to the latter upon the safe. Warner subsequently demanded the safe from Roth, who refused to deliver it; and thereupon the former brought this suit, which is in replevin, claiming a recovery of the safe as owner, and as such, entitled to the immediate possession thereof; and the latter answered, claiming the ownership and the right of immediate possession. Upon these facts the district court rendered judgment for the defendant. He claims an affirmance upon either of two grounds; one, that at the common law, though the sale was conditional as between Warner and the firm, it was absolute as between Warner and himself; the other, that the effect of the condition was to reserve to Warner against his vendees nothing more than a lien, which lien could be protected against third persons only by acknowledging the contract, and filing it with the county recorder, under and in pursuance-of sections 2, 3 and 6 of chapter 20 of the Compilation relating to chattel mortgages; and, therefore, that in any view the plaintiff cannot recover. If the intention of the parties to the contract of sale, as they have expressed that intention, is to prevail, the passing of the property was conditional, the condition was not performed, and the title remains in Warner as fully as it would have remained in him had the contract not been made. According to the common law of England, such an intention would prevail, and the sale would be conditional, completely protecting the title in the vendor against his vendee, and creditors of, and purchasers from him, and for that purpose clothing the vendor with the full right of reclamation, and, therefore, this sale completely preserved the title in Warner against C. F. Unfug & Bro., and Roth, and clothed him with that power of reclamation, whether Roth be considered as having purchased from the firm through its assignees,- regarded as its agents, or as having taken title from the creditors of the firm. The common law of England, as found in English adjudications, subject only to the difference of construction established by the supreme court of the United States, subject also to the Federal constitution and statutes, and the territorial statutes, is the law of this territory. It is as entire and distinct a body of jurisprudence, and is as imperative upon the courts of this territory, as is the French law, commonly known as, and correctly called the code civile, an entire and distinct body of jurisprudence in Louisiana, and imperative upon the courts of that state. We can no more depart from the common law proper than we can usurp; we can no more disregard it than we can invent law; qualified as above explained, it is our rule, and we are subject unto it; we sit here simply to administer it; and this is the sum of the matter. The decisions of the state and territorial courts of this country can be consulted by us as illustrative of the common law proper, but cannot be accepted by us against that law. By no other rule can we keep within our functions; by no other rule can we guard the jurisprudence of the territory from becoming interwoven with, and falsified by the endless divergencies and contradictions respecting that law, that prevail and incessantly develop in the state and territorial courts,— divergencies and contradictions resulting in part from modification to local convenience, in part from misconception. The result is, that at the common law, Warner holds the title as against Roth. Under the rule above stated, it would not have affected the result had it appeared that the drift of American decisions was against tbe English common law as to conditional sales; but it is proper to remark that, with slight exceptions, they accord with that law.

Does the statute vary tbe. result? If in order to protect the title in Warner against the creditors of, or purchasers from his vendees, tbe contract should have been acknowledged and filed under sections 2 and 3, it must have been because of sections 1 and 6. Section 1 provides that no chattel mortgage shall be valid against third persons, unless possession of the property be delivered to and remain with the mortgagee, or the mortgage be acknowledged and filed. Section 6 is: “ The provisions of this act shall be deemed to extend to all such bills of sale, deeds of trust and other conveyances of personal property, as shall have the effect of a mortgage or lien upon such property. The instruments contemplated by these sections simply create collateral security in one party upon the property of another; consequently the contract of March 3, 1877, is not affected by the statute.

The judgment of the district court is reversed with costs, and with instructions to that court to proceed according to this opinion.

Judgment reversed.

Fisher, C. J., dissenting.