Bry Block Mercantile Co. v. Paden

110 So. 437, 144 Miss. 521, 1926 Miss. LEXIS 407

• Court: Mississippi Supreme Court
• Decided: November 29, 1926
• Docket: No. 25888.
• Status: Published

Opinion

McGtOwen, J.,

delivered the opinion of the court.

This is a replevin suit from the circuit court of Bolivar county, wherein Bry Block Mercantile Company, on November 18, 1922, sold Albert Alexander a talking machine, retaining the title by written contract until the full amount of two hundred ninety-five dollars was paid. This written contract was never recorded. Alexander never made any other payment except the initial cash payment on delivery of the machine to him, and he retained possession thereof until May or June, 1923, when he delivered the machine to C. R. Pate as payment on a debt due by Alexander to Pate, and, without any notice of the claim of Bry Block Mercantile Company at any time theretofore, he traded the machine to the appellee, P. Gr. Paden, in 1924, receiving therefor a radio set. Paden was informed by Pate that the title was clear. Paden, the last vendee, retained possession of the talking machine until November the 11th, 1925', when the agent of Bry Block Mercantile Company, appellant here, located'the machine in Paden’s possession, and made demand for the machine. Paden asked for time to investigate, and, five or six days later, notified the appellant that he would decline to deliver the machine; and Bry Block Mercantile Company, in January, 1926, more than three years after Alexander first went into possession of the personal property, the talking machine, filed its suit in replevin in a court of a justice of the peace. The suit was appealed from the justice of the peace’s court to the circuit court, tried on an agreed statement of facts before the circuit judge, who decided that the appellant, Bry Block Mercantile Company, was not entitled to the possession of the taking machine here involved.

We have before us the construction of section 3121, Hemingway’s Code (section 4777, Code of 1906), which statute reads as follows:

“Fraudulent Loans of Goods.' — And in like manner, where any loan of goods and chattels shall be pretended to have been made to any person with whom, or those claiming under him, possession shall have remained for the space of three years without demand made and pursued by due course of law on the part of the pretended lender, or where 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 or chattels, the possession whereof shall have so remained in another for said time, the same shall be taken, as to the creditors and purchasers of the persons so remaining in possession, to be fraudulent within this statute, 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 writing, proved or acknowledged, and filed for record.”

It will be seen that this talking machine remained in the possession of Alexander and his vendees for the space of more than three years before a suit was actually instituted to regain possession thereof by Bry Block Mercantile Company.

In the case of McKee v. Mitchell, 109 Miss. 320, 68 So. 468, it was decided that the possession of a remote vendee, holding under the first purchaser, where there is a reserved secret lien not recorded, and of which there is no notice to the subsequent vendee, is the possession of the original vendee; and that both the purchaser and his vendee, having retained possession of the personal property for more than three years, the transaction was within this Statute of Frauds.

In the instant case, demand having been made within the three-year period, the only question left open for decision is whether or not a suit also must be instituted within the three-year period. We must answer that question in the affirmative, because the words here to be construed, “without demand made and pursued by due course of law on the part of the pretended lender,” are connected by the conjunction “ a/nd.,” which cannot be fairly construed to mean or. The demand must be made and thereupon the proper proceeding at law instituted within the three years, or else the title of the original vendee and those claiming under him as to said pretended loan or secret lien will have become absolute, and the above section will apply thereto just as though demand had not been made. It is not enough to^nake the demand within the three-year period, but the statute’s language is that the demand must be made and- due course of law purstied in order to avoid its rigor.

Affirmed.