The daily telegram. [volume] (Clarksburg, W. Va.) 1901-1926, 1911-12-21

SGD b COURT
Supreme Court Judge Writes
An Important Opinion in


UFhARIESroN. Dec. Z1-1n re-
versing the judgment Of the circuit
Icourt OF Cabell county, ana enfering
Judgment for, the deEendants In the
ease of the Triumph Electro Com
pany vs.. the Empire Furniture Com-
lpany, Judge Ponenbargef. writing
the opinion OF the supreme court Of
appeals, holds that "a deed OF trust
upon personal property. TO be ac-
qnired by the grantor after the de-
livery OF the trust deed. does not
pass the legal title to the property.
but creates an equitable lien in ia
vor OF the creditor, and is protected
/ by section 9 OF chapter a OF the
Code. against an unrecorded reser-
walton OF title TO slch after-acqui
property In favor OF the vendor in
the sale to the grantor In the Heed
of trust
The opinion also held that such
la deed of trust is contract to give
ia lien on the property when ac-
lquired, which a court OF equity will
specifically enforce And that "a
sale of such property under a decree
! in an equity suit, to which the ven
dor is not party, to have the deed
of trust declared fraud1Ient or
preferential i'm violation of the stat
ute against preference, passes to the
purchaser the superior right OF the
trust deed creditors. Such a cred
itor is regarded in equity as a pur-
chaser within the meaning of the
recording statutes and decree OF
sale, treating the equitable lien as
having been perfected in equity by
specific execution of the contract to
give a lien, evidenced by the deed
of trust, passes the legal title to the
property.
The case is one of question OF
title to personal property. the Tri-
umph Electric Company claiming
under reservation thereof in con-
tract of sale, and the Empire Fur
niture Company under a purchase
at Judicial sales founded upon the
theory, of a lien upon the property
by deed OF trust Subsequent in date
to the contract reserying title. :.
I. On October 10, 1907, the Probst
Furniture Company. executed deed
of trust to E. E. williams and H.
r. Lovett, trustees, to secure the,
payment of.eeFtaip. nagotiabler prom
issorys notess 10 Conveyed all prop
erty owned by the company, etc, and
recorded on the same day. On oc-
to6er IA the grantor in the deed of
trust purchased from the Triumph
Electric Company. another corpora
ton, machinery for S4g5. co. of
which $4,000 was pain IN casI, and
notes given for the balance. The
contract rsserving title was not re.
corded until April 10, 1908, about
FIVE months after the delivery OF the
property. In the same month suit
was Instituted against the Probst
Furniture Company to have the deed
of trust declared frauulent and
and to have a receiver
appointed. The lower court entered
an order and all the property OF the
Probet Furniture Company was sold
on october Z, 1905, to c. r.
Conner, trustee, who later sold the
machinery in controversy to the
Empire Furniture Company and
also the notes secured by the deed
of trust were assigned to the EN-
ptre Furniture Company
1.-The defendant in error waived
or lost what would have been SUI
perior right by it's failure to record
the contract says the opinion. 'As
it was not a party to the suit in
equity, nor under any duty to go
into the suit for adjudication there
in, as one against the defendant in
error, except in so far as the decree
became the basis of the transfer OF
a superior contractural right. Nor
is the date of the institution OF the
equity suit. or the stage OF the pro
oeedings at which the sale was or
dered therein. or the conditions un-
der which it was ordered, material.
If the property was sold to satisfy
the equitable lien created by the
deed of trust, the decree passed to
-, -,----.. 80 sN0arTnr right of