ARK.] FARMERVILLE STATE BANK V. HARMON: 1029 PA:RMERVILLE STATE BANK V. HARMON. 4-3576 Opinion delivered November 19, 1.934. 1. SALE—CONSTRUC'FIVE DELIVERY.—Execution and delivery of a bill of sale of mortgaged personalty by a mortgagor in default to the mortgagee after completion of a sale where the property is incapable of manual delivery constitutes constructiVe or sym-. bolical . delivery of the property as matter of law. 2. SALE—NATURE OF INSTRUMENT.—An instrument in the ordinary form of a bill of sale, pioviding that the seller, in consideration of $1 and other valuable considerations paid, does sell and deliver to the buyer certain chattels particularly described, held a bill of sale, and not a mortgage: 3. SALES—POSSESSION.---Possession of chattels sold by the seller's agent before execution and delivery of a bill of sale held possession thereafter for the buyer.
1030 FARMERVILLE STATE BANK V. HARMON. [189 4. • ArrAcHmENT—PRIoRrrY:—An attachment lien acquired by an ern: • ployee on his employer's chattels after the employer had executed a bill of sale of the property was subsequent to the title conveyed by, the latter instruMent. • Appeal from Union Circuit Court, Second Division; W. A. Speer, Judge; reversed. • ' Neil C. Marsh, Neil C. Marsh,' Jr., Tom Marlin and C. W. McKay, for appellant. J: V. Spenéer, McNalleY & Sellers and H. S.Tocum, for aivellees. MCHANEY, J. In the year 1926, appellee, T. L. Grubbs, was engaged in the construction of highways'in Louisiana near Farmerville, and owned considerable tools, machinery, 'mules and horSes, which he used in his road constrUction busineis. He became indebted to ap-pellanf in that year, and executed to appellant a note secured by a mortgage on said property which is now in controversy. On April 17, 1928, Grubbs was so indebted to appellant in the sum of $4,500, evidenced by hi$ note for Said amOunt due and payable August 20, 1928, 'which was secured by . mortgage on said 'property. : The property waS then located in Louisiana, but , was, afterwards without appellant's consent ' brOlight'into Union County, Arkansas. Grubbs failed to pay his indebtedness to appellant when due, and on October 2, 1929, he executed and delivered tp appellant a bill of sale of the property in controversy, which was then focated near Huttig, in Union 'County, Arkansas; and was in the possession of the appellee, J. W. Valliant, who was employed by Grubbs and was Using said property in hauling logs for the Union . Sawmill Company. A short time after the execution and delivery of the bill of sale, appellee Valliant Went _to Farmerville, : Louisiana, for the purpose of obtaining appellant's consent for -him- fo keep possession of the property for a while and until they could pay the indebtedness that Grubbs was due his employees. According to Valliant, Mr. Selig, appellant's vice president, refused permission to keep such possession for this purpose. According to Mr. Selig, he agreed to let Valliant keep possession of the muies and other property involved in this suit for the purpose of finishing some hauling. A
ARK.] FARMERVILLE STXTE . BANK V.. HARMOist: 1031' short time,. thereafter Valliant brought an attachment suit in the Union Circuit Court against Grubbs on an alleged indebtednes,s of $834.95 which he claimed Grubbs owed him for; serviced rendered,- and levied; an attachment on the property,in controversy. Thereafter Grubbs entered his appearance..and consented tha , t . judgment go against,.him, and on_the 20t1 day , of , Noyerober, 1929, judgment for said sum was rendered, the attachment sustained, and , the property was, ordered sold to satisfy said judgment. Before the , sale, appellant learning of ,this proceeding, brought a replevin suit against John W. HarmOn, sheriff of Union COunty, Arkansas, as also Valliant and Grubbs, to recover possession of the property. Isdue was joined, and oh Valliant's motion the cOUrt required appellant to 'elect whether it claimed title and right to PodsesSimi Of 'this property under its mortgages above Mentioned or it§ bill of sale dafed October 2, 1929. Under, the order'of the court' aPpellant elected to stand , on the bill of ,sAle. It_ was tried to a jnrY, and judgnient rendered against appellant in the sum of $1,762, the ,proPerty haVing 'been deliyered to appellant under its repleYin bond. The bill of sale is the ordinary form of a bill. of sale covering personal property. It provided that, , in consideration of the sum of one dollar and 'other valuable considerations to him (Grubbs) cash in hand paid by appellant, receipt of which is .acknowledged, ;"have bargained; sold and delivered, and do by these presentS bargain, sell, and deliver;" . unto the appellant the personal property therein described, which is the property in controversy. It further contained this clause : 'It iS agreed, that any money received by the seller under this bill of, sale for Any ,of the livestock, tools,. or? equip-. ment herein mentioned, shall and will be credited on and. against my indebtedness . to ,them, .memorandum of such sale shall be made to me, at my address at Maud Texas, said credits to be applied as, where, and. if the money is receiyed, less all ,expenses .of sale." , It concluded with a warranty clause, but no.defeasance,elause. At the same time Grubbs executed ai note to appellant covering all of his indebtedness to it up to that, time, and also executed
1032 FARMERVILLE STATE BANE . 1). HARMON. [189 a mortgage on other property that he had in Cass Countyi Texas. ' The . court instructed the jury that the instrument above mentioned, called a bill Of sale, is a bill of sale. The. only question submitted to the jury was whether there was a constructive or symbolical delivery made of the personal property therein described by Grubbs to appellant. The jury found that there had been no such delivery, and under the instructions of the court returned a verdict against appellant for the value of the property. We are of the opinion that the court erred in submitting that question to the jury, and in refusing to direct a verdict for appellant at its request. The undisputed evidence shows that the sale by Grubbs to appellant was complete, and the execution and delivery of the instrument to it constituted a constructive or symbolical delivery of the property to the appellant. The' instrument was executed in Texarkana, Texas. The property was located in Union County, Arkansas, and was not_ subject to manual delivery at that time. We agree with the trial court that the. instrument is in fact a bill of sale and not a mortgage. There is no question Of fraud involved in the case as between appellant and Grubbs. Appellee is merely an attaching creditor, and, if the execution and delivery of the bill of sale was a sufficient delivery of the property, either actual or constructive, to pass the title to it, a judgment should have been directed in the appellant's favor. It was said by this court hi Cate-LaNieve Co.. v. Plant, 172 Ark. 82, .287 S. W. 750 "It has always been the rule of this court that constructive delivery on the sale of a chattel is sufficient to pass the title, and that the intention of the parties, when manifested by any overt act, is controlling" (citing a nhmber Of cases). Now in this case both appellant and Grubbs testified positively that the execution and delivery of the instrument was intended by both parties to be a complete sale, and to pass the title to the property therein described at that time. Appellee, Valliant, also recognized this to be the fact and recognized appellant's title to the property by his trip to Farmerville, and by his request of
permission to retain the property for a short time for said purposes. Valliant's possession of the property was Grubbs' possession prior to the execution and delivery of the bill of sale, as he was Grubbs' agent. After the execution and delivery of the bill of sale, he held possession for appellant. Appellees contend that the clause above quoted renders the instrument a mortgage and not a bill of sale. Assuming that it might be so held in equity, we -think it can make no difference to Valliant for in either case his lien acquired by attachment was subsequent to the title or lien conveyed by the instrument. . Under our view of the case, the court should have directed a verdict in appellant's favor. Not having done so, the judgment will be reversed, and judgment will-be rendered here for the possession of the property in appellant's favor.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.