The United States ex rel. v. Labette County. and pay over, the tax levied by them to pay relator's judg ment? It is insisted that it was the duty of all the officers of the county, including the clerk and treasurer, to take notice of, and obey, the mandate of the writ addressed to the board. If this were granted, it would not follow that the board should be held in contempt; for if the writ can be regarded as addressed to and operating upon the clerk and treasurer, then those officers may be in contempt for failing to obey it, while the board, if it has performed its duty fully, may be exonerated. The members of the board cannot be punished for a failure of the clerk and treasurer to discharge their duties. But I should have great difficulty in holding that the clerk and treasurer could be punished for failing to obey a writ not addressed to or served upon them, and which does not name them, or command them, in terms, to do anything. I am not prepared to say, that, in such a case as the present, the writ might not run against the corporation, and be served upon the several officers who have duties to perform, commanding each to perform the duty required of him by law with respect to the levy, collection, and paying over, the tax. But that has not been done. The case is one in which, by inadvertence, the command of the writ is too broad; it commands the board to perform the functions which belong to other officials. The remedy is to take a new writ against the clerk and treasurer commanding them to discharge their duties. Such writs will be freely granted at any time. 4. Counsel for relator have suggested that the board have not done all that was in their power in their endeavor to obey the writ. It is said that they might, after levying the tax, institute proceeding in mandamus to compel the other officials of the county to go on and collect and pay over, and that they might sue such officials on their official bonds for damages for their failure to do so. I suppose the board could do either or both of these things; and if relator insists, an order may issue directing them to institute such proceedings, or to show cause why they have not done so. But I think the counsel will, Blackwell Thompson & Co. v. Walker Bros. & Co. and Deal v. Hicht. upon a little reflection, conclude that the relief he would obtain in this way would probably prove to be very inadequate. No other remedy is likely to be found so effectual as that which is afforded by the writ of mandamus, issued by the court in which the judgment is rendered, and addressed to the official or officials whose duty it is to levy, collect and pay over the taxes requisite for the satisfaction of the judgment. The demurrer is overruled. BLACKWELL THOMPSON & Co. v. WALKER BROS. & Co. AND DEAL V. HICHT (Eastern District of Arkansas. October, 1880.) 1. CONDITIONAL SALES-VALIDITY OF.- Conditional sales were valid at common law, and their validity was not affected by the English statute of frauds, nor are they within the recording acts of the state of Arkansas. 2. SAME RIGHTS OF VENDOR AND VENDEE. Such sales, oral or in writing, are valid in Arkansas, and creditors of, and purchasers from, the conditional vendee acquire no right to the property as against the vendor who has been guilty of no fraud and no laches in asserting his rights. 3. SAME STATUTE OF FRAUDS.-The statute of frauds of the state of Arkansas (sec. 2597, Gantt's Dig.) has no operation on such sales until the possession has continued in the vendee for five years. These cases raise the question of the validity of conditional: sales. In the first case the plaintiffs agreed to sell to one Cowger a gin, portable steam engine and fixtures for the sum of six. hundred and twenty-three dollars and seventy-eight cents, upon his paying the agreed price. Cowger executed his notefor the price, and plaintiffs gave him possession of the articles upon the distinct verbal agreement that the right of property therein should not pass to him, but should remain in the plaintiffs until the price agreed upon was fully paid. The defendants were creditors of Cowger at the time he obtained possession of the chattels from the plaintiffs, and subsequently VOL. II-3 Blackwell Thompson & Co. v. Walker Bros. & Co. and Deal v. Hicht. recovered judgment on their debt and caused an execution to be levied on the chattels as the property of Cowger. Cowger still owes four hundred dollars on the purchase. The plaintiffs have filed a petition setting up these facts and asking the property to be discharged from the levy of the execution and the marshal ordered to deliver same to them. In the last case there was a conditional sale- substantially in the same terms as in the first of work oxen and wagons; and the difference in the two cases is, that in the latter case the conditional sale is evidenced by a written contract of the parties; and the vendee, without paying the stipulated price for the property, sold and delivered it to the defendant, who purchased it in good faith and without notice of the vendee's want of title; and the plaintiff - the first vendor - has brought an action of replevin for the property. M. W. Benjamin, for plaintiff, and Erb & Erb, for defendant in first case, and J. M. Moore, for plaintiff, and Henderson & Caruth, for defendant in second case. CALDWELL, District Judge.-Conditional sales were valid by the common law, and their validity was not affected by the provisions of the English statute of frauds, nor are they within the recording acts of this state. In the case of a chattel mortgage the property and possession of the chattel, in this state, is in the mortgagor, and neither the property nor the possession is changed by the mortgage, but the mortgagee acquires, in the language of the statute, “a lien on the mortgaged property from the time the same is " filed for record. Gantt's Dig. sec. 4288. In a conditional sale the property in the chattel is separated from the possession, the property remaining in the vendor and the possession only passing to the vendee. The same thing happens upon the loan, hire or other like bailment of chattels; in all such cases the right of property in the thing bailed remains in the bailor and the actual posses Blackwell Thompson & Co. v. Walker Bros. & Co. and Deal v. Hicht. sion passes to the bailee. If one loan or hire his horse to his neighbor, he does not have to reduce the contract for the bailment to writing and have it signed, acknowledged and recorded in order to prevent the bailee from making an effectual sale of the horse or his creditors from seizing it on execution for his debts. The possession of personal property is undoubtedly presumptive evidence of title; but it is also a general rule that a vendor in possession of such property can impart no better title to it than he himself possessed. There are some exceptions to this rule, but the case of a vendee in possession of chattels, not to be consumed in their use, under a conditional contract of sale like these we are considering, is not one of them. One of the earliest cases in this country on the subject of conditional sales was Hussey v. Thornton, 4 Mass. 405. In that case the contest was between the vendor and an attaching creditor of the vendee whose debt was contracted prior to the conditional sale. The court held the conditional sale valid against the attaching creditor, but in the course of the opinion in the case Parsons, C. J., said: "Had the demands of these attaching creditors originated while the goods were in the possession of Tood and Worthly (the conditional vendees), so that it might be fairly presumed that a false credit was given them, or had they sold them bona fide for a valuable consideration, our opinion would have been otherwise." This expression of opinion was not necessary to a decision of the case before the court, and afterwards when a case did arise making it necessary to decide whether such sales were valid against creditors whose debts were contracted while the vendee was in possession of the property under such conditional purchase, the dictum in Hussey v. Thornton was disapproved, and Parker, C. J., who delivered the opinion of the court, said: "If the transaction is fraudulent, the vendor setting up a condition to the sale, yet suffering the vendee to be in posses Blackwell Thompson & Co. v. Walker Bros. & Co. and Deal v. Hicht. sion, exercising full rights over the property, with the intent and purpose of enabling him to obtain credit on the strength of the property, he will not be able to avail himself of such condition, but the sale will be held to be absolute in regard to creditors. But if bona fide, and the object of the condition was merely security to the vendor, he shall not lose his property because some creditor of the vendee supposed it to belong to him." Ayer v. Bartlett, 6 Pick. 71. Later cases in the same state affirm the law as laid down in Ayer v. Bartlett, and it seems to be the settled doctrine of the courts in this country. Armington v. Houston, 38 Vt. 448; Bigelow v. Huntly, 8 Vt. 151; Buckmaster v. Smith, 22 Vt. 203; Chaffee v. Sherman, 26 Vt. 237; Bradley v. Arnold, 16 Vt. 382; Paris v. Vail, 18 Vt. 277; Barrett v. Pritchard, 2 Pick. 512; S. C. 3 Am. Dec. 449 and note; Martin v. Baldwin, 17 Mass. 686; Merril v. Rinker, 1 Bald. C. C. R. 528; Blood v. Palmer, 11 Me. 414; Miller v. Bascom, 28 Mo. 352; Rogers Locomotive Works v. Lewis, 4 Dillon, 267; S. C. 3 Cent. L. J. 784; and it seems to be equally well settled that the vendor who has been guilty of no laches in asserting his right to the property may recover it from a bona fide purchaser from the vendee. Coggill v. Hartford R. R. Co. 3 Gray, 545; Ballard v. Burgett, 40 N. Y. 314; Bigelow v. Huntly, 8 Vt. 151; Sargent v. Metcalf, 5 Gray (Mass.), 506; Hurt v. Carpenter, 24 Conn. 427; Parmelee v. Catherwood, 36 Mo. 479; Griffin v. Pugh, 44 Mo. 326; Little v. Page, id. 412; Benner v. Puffer, 114 Mass. 378; Thomas v. Winters, 12 Ind. 383; Dunbar v. Rowles, 28 Ind. 328; Bailey v. Harris, 8 Iowa, 333. In this state the settled rule of the common law, that a purchaser of a chattel acquires no better title than his vendor possessed, has not been changed by statute in its application to conditional sales; and creditors and purchasers of the conditional vendee acquire no right to the property as against the vendor, who has been guilty of no fraud and no laches in asserting his rights. |