Esterly Harvesting Co. v. Hill

Reeves, P. J.

On the trial in the County Court objection was made by the defendant to the competency of the witness J. A. Skipper, the guarantor upon the notes by whom it was proven that Pritchett in his lifetime agreed that the machine should stand as security for the notes, until paid. The defendant is not made a party to the suit as administrator of Pritchett. He did not defend in this capacity. The estate of Pritchett had no interest in the result of the suit. The estate had received the proceeds of the sale of the machine by the administrator. As against the defendant, Skipper was a competent witness.

Did the appellant have such a lien on the machine as would enable it to maintain replevin ? It must be remembered that this was not a conditional sale. The sale of the machine to Pritchett was an absolute sale. The agreement for a lien was made some months after. It was not made so as to conform to the provision of the statute. But it is contended that the agreement was binding upon Pritchett and his legal representatives. Even if this be conceded, this is not a suit against Pritchett, or his legal representatives. If the sale of the machine at the administrator’s sale was not legal, and the possessory title is still to be considered in Pritchett’s administrator, and this suit is to be treated as against the estate of Pritchett, then, plainly, Skipper was not a competent witness, and without his testimony, appellant showed no right to the machine. In any view of the case, we do not see how appellant could recover in this action. If Hill had any right of possession of the machine as purchaser from Davis, he could not be affected by the verbal lien set up by appellant, as it is not claimed that he had any notice of the lien. If the machine,in law, belonged to the estate of Pritchett, subject to the lien, then Skipper was not a competent witness to prove the verbal lien. The judgment of the County Court is affirmed.

Judgment affirmed.