FitzGerald v. American Mfg. Co. , 114 Miss. 580 ( 1917 )

Holden, J.,

delivered the opinion of the court.

This is an action of replevin, brought by the American Manufacturing Company, plaintiff in the lower court and appellee here, against the appellant, F. P. Fitz Gerald, for certain property consisting of a soda fountain, fixtures, and apparatus belonging thereto, and also one ceiling fan. The property was purchased by one Goodman from the appellee, under a contract of sale wherein the appellee retained title to all of the property. This property was placed and used in the pool room operated by said Goodman, in a building belonging to appellant, F. P. FitzGerald. Goodman fell behind in the rent due to FitzGerald and finally left the town, owing a considerable amount of rent to appellant. FitzGerald, the landlord, took possession of the property, which consisted of the soda fountain, fixtures, etc., and the ceiling fan; and the appellee, having the title to the property retained in the contract of sale, instituted this suit of replevin for the property, and obtained a judgment, from which this appeal comes here.

It appears that the contract of sale, correctly and validly described the property and ietained the title in the seller, the appellee, The American Manufacturing Company and was duly recorded in the office of the chancery clerk of that county. But the ceiling fan was not described in the written contract of sale that was recorded, but the. retention of title to the ceiling fan, which seems to be; valued at thirty dollars was by a different instrument that was never placed upon record. It is conceded in the briefs of all parties that the said Goodman, who was running a pool room and selling cigars, soda water, and tobacco, was thus “transacting business as a trader,” under section 4784, Code of 1906, which provides that all 'of the property used or acquired in such business shall be liable for, the debts of such trader. But it will be observed here that the contract of sale, which retained the title and right of possession in the appellee, was acknowledged and duly recorded, and was constructive notice to all that the title to the property was not in Goodman, the person transacting the business as a trader, but was in appellee. Therefore the appellant FitzGerald could not subject this property to his debt for rent of the building, because the debtor had no title to the soda fountain fixtures and apparatus, and of this, appellant FitzGerald had record notice. Tufts v. Stone, 70 Miss. 54, 11 So. 792; Gayden v. Tufts, 68 Miss. 691,10 So. 53.

But as to the ceiling fan, it appears that this fan was not included in the contract of sale that was recorded, and appellant FitzGerald had no notice that the title to the ceiling fan was retained in the appellee, and he had a right under the statute, to assume that this fan was owned by the said Goodman which was acquired and used in the business of a trader as transacted by Goodman; and it was therefore liable to his creditors for his debts, and the appellant had a right to retain the possession of this ceiling fan to satisfy his debt for rent of the building in which the business of trader was transacted and carried on. Section 4784, Code of 1906; Paine v. Hall Safe & Lock Co., 64 Miss. 175, 1 So. 56.

The judgment of the lower court is reversed as to the recovery of the ceiling fan valued at thirty dollars and is affirmed as to all the other property involved in the suit.

Reversed and remanded as to the ceiling fan, and affirmed as to all other property replevied.

Reversed and remanded.

Affirmed.