Dunne v. Petterman , 52 N.M. 284 ( 1948 )

On Motion for Rehearing. The defendant, appellant in this court, has moved for rehearing. This motion is unsupported by brief, Supreme Court Rule 18, Sec. 3, 1941 Comp. § 19-201, and, therefore, is not entitled to consideration as of right. Supreme Court Rule 16, Sec. 2. Nevertheless, the filing of such motion affords us the occasion for an additional observation on the opinion filed. It should have been mentioned therein, but was not, that in sustaining the plaintiff's oral conditional sales contract as against the defendant, who was unable to qualify as a bona fide purchaser for value from plaintiff's vendee, we were applying the law of Texas, where the contract was entered into, making such contracts chattel mortgages, rather than the law of New Mexico, where the defendant's purchase took place. Cf. Allison v. Niehaus, 44 N.M. 342, 102 P.2d 659.

Under Vernon's Texas Civil Statutes, Sec. 5489, a conditional sales contract is deemed to be a chattel mortgage and, when possession is delivered to the vendee, is void as to creditors and bona fide purchasers, unless the reservation of title be in writing and registered as required of chattel mortgages. This Section reads:

"All reservation of the title to or property in chattels, as security for the purchase money thereof, shall be held to be chattel mortgages, and shall, when possession is delivered to the vendee, be void as to creditors and bona fide purchasers, unless such reservation be in writing and registered as required of chattel mortgages. * * *"

See Crews v. Harlan, 99 Tex. 93, 87 S.W. 656, 13 Ann.Cas. 863; Crews v. Harlan, Tex.Civ.App., 88 S.W. 411; and Runnels Chevrolet Co. v. Travis, Tex.Civ.App., 62 S.W.2d 225.

The motion for rehearing will be denied. And it is so ordered.

BRICE, C.J., and SADLER, McGHEE, and COMPTON, JJ., concur.