Thomas A. Gay v. Leo Hardeman, 31 Tex. 245

Lindsay, J. —Upon a note executed for the purchase-money for a steam-engine, saw-mill, and fixtures, suit was instituted in the district court of Guadalupe county against the maker of the note and purchaser of thé engine, &c., and upon an allegation in the petition that a lien in parol was retained upon the property by the seller at the time of the contract of sale, a subsequent purchaser from the original buyer, the appellant in this record, was made a party defendant, and that alleged lien sought to he enforced against the property in his hands.

The facts of the case are these: William Means, on the 26th of February, 1856, executed and delivered to William P. Hardeman the following note: “$553. One day after date I promise to pay William P. Hardeman or hearer five hundred and fifty-three dollars, with interest from the 1st of September last. Value received. William Means. “February 26, 1856.” This note was indorsed— “Pay Leo Hardeman. Wm. P. Hardeman.” At the spring term of the district court, 1859, the assignee brought suit upon this note, thus indorsed, against the obligor and the assignor, and against Thomas A.

Gay, a subsequent purchaser of the steam-engine, saw-mill, and fixtures, which were charged to have been the consideration for the note, and alleging that said Gay had full notice at the time of his purchase that the seller of the steam-engine, saw-mill, and fixtures had retained a lien at the time of sale upon the property for the purchase-money. The defendant, Gay, in his answer, denied all knowledge of any such lien, and insisted that he was a purchaser in good faith, for a valuable consideration, without notice.

The two other defendants having failed to answer, judgment was taken against them by default, and the issue made by the answer of Gay was the sole issue on the trial of the cause. Upon this issue the finding of the jury was for the plaintiff, and the judgment of the court ordered a sale of the specific property to satisfy that judgment. The proof conduced to show that Gay had some knowledge of the notes being executed for the purchase-money, and that it was not paid; at least he had this knowledge before he had made the payment on his purchase.

But nothing appears to show that he had any knowledge of the existence of any lien, either express or implied, upon the' property which he .bought, nor is the court able to perceive from any proof in the record that any such lien existed. It seems to have been considered by the district judge that a parol reservation in the sale of a personal chattel constituted a lien in law, even against third parties. We do not so understand the law. It was not so at the common law, nor is it so by any of the statutes of the state.

Eor do we believe it is so by the statutes of any of the American states in the present enlightened period of the commercial policy of the world. What constitutes an actual sale of personal property? It is an agreement between the seller and the buyer upon the consideration or price, either in cash or upon a stipulated credit, and a delivery of the property. When so delivered, the sale is consummated and the right of property becomes absolute in the buyer, and the seller has no longer any more control over it than the rest of mankind.

But it is pretended that at the time of the sale a lien was reserved or retained by the seller. This was impossible by the common law in regard to personal property, because an actual or constructive delivery was necessary to effectuate a sale of personal property. And when this delivery took place the right of property was absolute in the buyer, and subject to any future alienations he might choose to make of it. In this respect there is an obvious distinction between real and personal property. The reason is, that the possession of real property is. not evidence of title.

But the possession of personal things is regarded in law as the strongest index of ownership. The court, too, seems to have totally misapprehended the nature and character of the liens upon personal property recognized by law. There are various orders of liens. Though generally arising by operation of law, they may be created by express contract. As already intimated, they .cannot arise upon a sale of personal property by express agreement, unless that agreement be reduced to writing, and is duly registered in the manner prescribed by law.

There may be liens upon the personal property of another, when it is in the possession of the party for whose benefit the lien obtains. Such are the familiar examples of common carriers, inn-keepers, tradesmen, salvors from the perils of the sea, and in cases where a party holds property against a future contingent claim or damages. In all such cases, to establish the lien, a party must have actual or constructive possession of the property. But as soon as he surrenders that possession, the lien is gone forever. This principle, however, in liens upon real estate, for the reason already given, does not obtain.

Hence.the vendor’s lien upon land for the unpaid purchase-money, no matter who may be in possession of it. This difference is founded on the obvious distinction in the nature, character, and uses of the two species of property. If, in addition to this reasoning upon the general principles of the law, legislative authority be wanting to give it sanction, it will be found in the last clause of the 2d

section of the statute .of frauds and fraudulent conveyances, (Paschal’s Dig., Art. 3876,) which is in these words: “ When any reservation or limitation shall be pretended to have been made of a use or property, by way of condition, reversion, remainder, or otherwise, in goods and chattels, the possession whereof shall have remained in another, as aforesaid, the same shall be taken, as to the creditors and purchasers of the persons aforesaid, so remaining in possession, to be fraudulent within this act, and that the absolute property is with the possession, unless such loan, reservation, or limitation of use or property, were declared by will, or by deed in writing, proved and recorded as aforesaid.” Thus, the principle is declared by statute to be universal, in reference to personal property, that possession is the true index of ownership, and is not to be contravened in the hands of a purchaser under that possession except in the manner pointed out by the statute.

We are therefore of opinion that the proof introduced in the court below to establish a lien upon the property sold by the plaintiff to Means,- and by Means to Gay, the appellant in this cause, was wholly insufficient for that purpose. But, on the contrary, it established the fact that no lien, recognized either in law or in equity, existed upon the property in the hands of the purchaser from the obligor in the note sued on. WBerefore the judgment is reversed and remanded, with instructions to dismiss the suit as to the appellant, Thomas A. Gay. Ordered accordingly.