s .f.r:au|S°l (I[nrn?ll Saaui ^rljnnl fliibrarg Cornell University Library KF 1056.Z95M87 Conditional sales and bailments :wllhfo 3 1924 019 384 076 Cornell University Library The original of tliis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019384076 CONDITIONAL SALES AND BAILMENTS WITH FORMS. BY WILLIAM W. ^lORRILL OF THE TROY, NTyTJ BAR. ALBANY, N. Y. MATTHEW BENDER, Law Publisher, 1961 C0P1?RIGHT, I9OI, By MATTHEW BENDER. Conditional Sales and Bailments. As the terms are here used, a conditional sale is a sale and delivery of personal property with an agreement that title is to remain in the vendor until payment is complete ; and a bailment is a contract by which such property is leased, and in which it is provided that after a certain amount of rent is paid, title shall be in or shall be given to the lessee, without further payment. Manufacturers and dealers in manufactured articles frequently have occasion to make delivery of goods in connection with some sort of contract for future pay- ment ; and it is often desirable to retain title until pay- ment is complete. For such purpose resort is had to contracts of one or other of the above named kinds; and printed blank forms are often used indiscrimi- nately, regardless of the laws of the particular jurisdic- tions to which the articles are delivered. In fact, however, a good deal of discrimination is necessary ; for while as between the parties the validity of such sales is unquestioned, and in many jurisdictions, in the absence of fraud, the rule is the same as to third persons, since in absence of statutes requiring filing or recording the general rule is that the vendee under a conditional sale obtains no title to the property, before 2 CONDITIONAL SALES AND BAILMENTS. payment, so as to render the property subject to levy and sale upon execution in favor of his creditors, or so that he can convey to a bona Me purchaser title that can be enforced against the original vendor; yet the rule has many exceptions, and the laws of the various jurisdictions in this country alone are in this respect extremely varied. For example, in many jurisdictions there are statutes making such contracts invalid as against bona ftde purchasers from the conditional ven- dee or his creditors, unless in writing, unless contain- ing certain specified provisions, unless executed with specified formalities, or unless filed or recorded in des- ignated offices. In a few states, the only safe course is to sell outright and take security by chattel mort- gage. In Pennsylvania, chattel mortgages are not rec- ognized, and contracts of bailment alone are available. In most states, however, ^o distinction is recognized between such bailments and conditional sales, the pur- pose and effect of both being the same. The above illustrations may serve to emphasize the importance of some ready means of information, avail- able to vendors and their legal advisers, as to the re- quirements, in these particulars, of the fifty odd civil jurisdictions embraced within the United States. The information here given was sought at the re- quest of a client; and the scope of this volume is limited to the precise line of inquiry required by said client, namely, the requisite information to enable a vendor in one jurisdiction to make valid contracts with respect to articles to be delivered in other jurisdictions, and to protect himself thereunder. CONDITIONAL SALES AND BAILMENTS. 3 Much of the information herein contained was re- ceived from leading attorneys in the respective juris- dictions, with whom correspondence was opened and to whom acknowledgment is hereby made. It has been supplemented and brought down to date by personal examination of statutes and decisions. The plan of this work is briefly as follows : The arrangement is alphabetical, according to the names of the various states and territories. Under the name of each state and territory are ar- ranged : (i) The statute, if one exist, either in full or by summary. (2) puotations from the letters of advice received from local attorneys- wherever important. (3) Forms, whether for body of contract, certifi- cates of acknowledgment, vendqr's affidavit for filing or refiling, or otherwise, especially appropriate to the particular jurisdiction. At the end of the book will be found forms of more general application. 4 CONDITIONAL SALES AND BAILMENTS. ALABAMA. CONTBACT MUST BE BECOBDED. By whom executed: Not specified. In what office recorded: Judge of Probate. Within what time: Thirty days after date. How long effective: Not speciffed. How time extended: Not speciffed. Statute. The following is a summary of the statute (Code 1896, §§ 1016, 1017) : Contracts of conditional sale, vendor retaining title until payment of purchase money and the purchaser obtaining possession, — ^and contracts for lease, rent or hire of personal property, property being delivered to lessee on condition that it shall belong to him when- ever certain sum paid, title meantime to remain in lessor, — are void against purchasers for valuable con- sideration, mortgagees and judgment creditors without notice, unless in writing, and within thirty days after date recorded in the office of the judge of probate of the county in which vendee or lessee resides, and also in the county in which property is delivered and re- mains; and if property removed to another county before payment complete, the contract must be again recorded within three months from the time of such removal in the county to which it is removed ; and if any such property is brought into this state while sub- ALABAMA. 5 ject to such condition, the contract must within three months thereafter be recorded in the county in which It is brought and remains. Similar contracts of conditional sale of railroad equipments or rolling stock must, in order to be valid against judgment creditors of or purchasers from the vendee, without notice, be "in writing and within three months after the making thereof, recorded in the office of the judge of probate of the county in which such corporation may have its principal office or place of business; and if it has not in this state a principal office or place of business, then in the office of the secretary of state; and, in addition, all cars or engines so sold must have thereon, plainly marked, the name of the vendor." Both parties must execute the contract, and as it is to be recorded it should be acknowledged. The statute contains no provision for re-filing. Certificate of acknowledgment. The following certificate of acknowledgment is pre- scribed by statute for instruments to be recorded in the State of Alabama (Code 1896, § 996) : State of ..: \ County of J I (name and style of officer), hereby certify that , whose name is signed to the foregoing con- veyance (or other instrument), and who is known to me, acknowledged before me on this day, that, being informed of the contents of the conveyance, he exe- 6 CONDITIONAL SALES AND BAILMENTS. cuted the same voluntarily on the day the same bears date. Given under my hand, this .... day of , A. D A. B., Judge (or as the case may be). (Two witnesses required.) ARIZONA. 7 ABIZONA. CONTBACT MUST BE FILED. By whom executed: Both parties. In what oMce Hied: County Recorder. Within what time: Not specified. How long effective: Not specified. How time extended: Not specified. Statute. (Laws 1895, Act No. 12.) " No contract for the loan or lease of any goods or chattels for a period of three months, and no contract for the sale of personal property by the terms of which the title is to remain in the vendor and the possession thereof in the vendee until the purchase price is paid or other conditions of sale complied with, shall be valid as against any other person than the parties thereto and those having notice thereof, unless such contract of sale or lease, as the case may be, be in writing, sub- scribed by the parties thereto, and the same or a copy thereof filed and recorded in the office of the County Recorder, where said property is situated, or some part thereof, in the same manner as chattel mortgages are by law required to be filed and recorded." By the chattel mortgage law, enacted in 1887 (R. S. page 416, section 2371) such instruments need not be actually recorded at length, but need only be deposited and filed. Both parties must execute the instrument, but as it 8 CONDITIONAL SALES AND BAILMENTS. need only be filed it probably need not be acknowledged. In case, however, acknowledgment is necessary, the form of certificate prescribed by statute is here given. Certificate of acknowledgment. of )^^. County of f Before me (here insert the name and character of the officer), on this day personally appeared , known to me (or proved to me on the oath of ), tc be the person whose name is subscribed to t)ie fore- going instrument, and acknowledged to me that he executed the same, for the purpose and consideration therein expressed. Given under my hand and seal of office, this day of , A. D., (Signature and title of officer.) ARKANSAS -CALIFORNIA. 9 ARKANSAS. SEOOBD OE FILIITG UNNECESSARY. Erom attorney's letter. " Little Rock, Ark., June 17, 1899. " A contract of conditional sale with delivery, re- taining title in the vendor until paid for, is valid against creditors and bona fide purchasers without rec- ord or filing. There is no statute. The common law governs here. There would be no advantage in having it in the form of a lease." CALIFORNIA. HECOBD OB FILING TJNNECESSABY. From attorney's letter. " San Francisco, June 20, 1899. " We beg to advise that we have in this state no stat- ute specifically bearing upon this matter. The law in this state exists and is circumscribed rather by virtue of certain decisions of our Supreme Court than other- wise. The leading case is that of Kohler v. Hayes, 41 Cal. 455. In that case the plaintiff delivered to Dow- ling a piano under the following agreement : " ' Received from Andrew Kohler, on rent, a certain piano forte, which I agree to return in good order, and lo CONDITIONAL SALES AND BAILMENTS. to be responsible for the value thereof, the same being of the value of five hundred dollars ; and for the use of which I agree to pay said Andrew Kohler, or to his order, the monthly rent of thirty-five dollars or forty dollars, strictly in advance. * * * This piano and stool to be sold for four hundred and eighty-five dollars, on the following terms : Forty dollars to be paid each month till the above sum is paid, when a bill of sale will be given ; interest at one per cent, per month to be paid . on the amount unpaid after ninety days. (Signed) Richard Dowling.' " The plaintiff delivered the piano to Dowling on the 13th day of April, 1866, and Dowling used it in his family, and on the 28th day of July, 1866, and after he had paid to plaintiff one hundred dollars (but whether as rent or part of the purchase price does not appear) sold the piano to Maine & Winchester, of which firm the defendant was a member. That firm made the pur- chase in good faith and had no notice of the terms of the agreement under which the piano was delivered to Dowling. As soon as Kohler knew of the sale to Maine & Winchester, and in August, 1866, he demanded the piano from them, and, on their refusal to deliver it, he brought action to recover possession of the same. " The Supreme Court said : ' But it does not ap- pear whether that sum was paid as rent or as a part of the purchase money. The question for solution is whether that instrument is evidence of an absolute sale of the piano. If the agreement fell short of an absolute sale, Dowling had not the capacity to transfer the title to the piano. The first portion of the written instrtf- CALIFORNIA. u ment, if it amounts to anything, shows that the parties intended to make a lease. The term is not stated, nor is the rent specified with certainty. It is unnecessary, however, to determine whether, for those reasons, it is void as a lease ; for, whether void or valid, it does not constitute a sale, nor does it contribute to that purpose. The remaining portion of the instrument specifies the price and the terms of the sale; but it recites neither that the plaintiff had sold, nor that Dowling had pur- chased the piano. It is either the specification of the terms of the sale, if Dowling should elect to purchase, or, at most, a conditional sale. The provision for the giving of a bill of sale, upon the payment of the price of the piano, indicated that it was not the intention of the parties that the title should pass upon the making of the agreement.' " In Palmer v. Howard, 72 Cal. 293, the reasoning of the Supreme Court is as follows : ' The plaintiff delivered to one St. Claire and wife certain personal property, under a writing, of which the following is a copy : " ' San Francisco, March 26, 1885. D. Parker St. Claire and wife, San Diego, Cal., borrowed and re- ceived of Palmer & Rey, 405-407 Sansome St., San Francisco, the following articles in good order. If the price set against them is paid, as per memorandum be- low, the property is then to belong to said borrower; otherwise it remains the property of Palmer & Rey. Notes and drafts, or renewals of the same, if given, are not to be considered payment until they are paid. In • the meantime the borrower is to keep the property in 12 CONDITIONAL SALES AND BAILMENTS. good order, and agrees to pay the price as per memo- randum below, keep the property sufficiently insured for the benefit of the said Palmer & Rey, depositing the policy of insurance with them, and may use the property free from any other charge. Said property is not to be removed from lot L, in block thirty-six (36) in the city of San Diego, Cal., without the written consent of Palmer & Rey. Should said borrower fail to meet any of the payments at the time specified, or to keep the property s^atisfactorily insured or in good order, then Palmer & Rey may take the said articles and dispose of them to the best advantage, rendering to said borrower all surplus, if any, after paying the price agreed upon and the expenses of removal and sale. " ' Then follows a list of the articles, and a specifica- tion of the installments of the price, amounting in all to $2,295.45. The St. Claires paid but one installment of the price, and did not keep the property insured, but mortgaged the same to the defendant for $925, and subsequently left, for parts unknown. The question is as to the effect of the agreement quoted. " ' It is settled in this state that even bona fide pur- chasers from the person to whom personal property is delivered under an executory contract of sale get no. valid claim to the property. (Citing cases.) This is in accordance with the great preponderance of author- ity elsewhere. (Citing.) The reason is that in such cases the title to the property does not pass, and the maxim, nemo plus juris, etc., applies. " ' But in applying this rule it must be remembered in general, that the policy of the law is against upholding CALIFORNIA. 13 secret liens and charges to the injury of innocent pur- chasers or incumbrancers for value, and in particular, that mortgages of pei'sonal property are permitted only in certain specified cases, and then only, upon the ob- servance of certain formalities, designed to insure good faith, and to give notice to the world of the character of the transaction. These provisions as to mortgages cannot be evaded by any mere shuffling of words. Where it is clear from the whole transaction that for all practical purposes the ownership of the property was intended to be transferred, and that the seller only in- tended to reserve a security for the price, any charac- terization of the transaction by the parties, or any mere denial of its legal effect, will not be regarded. The question, it is true, is one of intention; but the inten- tion must be collected from the whole transaction, and not from any particular feature of it. In the present case it seems to us that the intention must be taken to have been to transfer the ownership of the property, reserving a security for the price, and nothing more. The possession was delivered. The promise to pay was absolute. If Palmer & Rey, on reselling the property, had sued the St. Claires for the difference between the agreed price and what the property brought on the re- sale, we see no defense the latter could have made. Moreover, Palmer & Rey were bound to resell the prop- erty if they repossessed themselves of it. They could not have kept it as an owner ; and not only so, but they were bound to resell for -the benefit of the St. Claires. The provision is, that if they retake they shall sell ' to the best advantage, rendering to said borrower all sur- T4 CONDITIONAL SALES AND BAILMENTS. plus, if any, after paying the price agreed upon and the expenses of removal and sale.' This is not a feature of an executory contract of sale. It is the chief char- acteristic of a mortgage, and is the very sum and sub- stance of proceedings for foreclosure. In a controversy between debtor and creditor as to whether a transaction was a mortgage or sale, such a stipulation would be conclusive that it was a mortgage. Why should it have a different import in this case? We think, therefore, that the intention was to vest the substantial owner- ship in the St. Claires, and that the sole object of the seller was to secure payment of the price ; and this in- tention appears from the provisions of the contract it- self. Such being the case, the statement that the prop- erty ' remains the property of Palmer & Rey,' etc., is inconsistent with the 'nature of the transaction, as shown by the contract itself, and is a mere disguise for the purpose of evading the requirements of the law as to mortgages of personal property. * * * ' " There is no requirement as to record or filing, and the bill of sale or lease of personal property is not, as a matter of fact, suitable matter for filing or recording under our statutes. It is customary to put such con- tracts here in the form of a lease with privilege to pur- chase or covenant to convey upon condition." COLORADO. 15 COLORADO. COITTRACT MTTST BE FILED AS CHATTEL MORTGAGE. From attorney's letter. " Denver, Colorado^ June 21, 1899. " Our Supreme Court, in the case of Jones v. Clark,. 20 Colo. p. 353, holds as follows: — ' The condition of a sale and delivery of personal property that title shall not vest in the purchaser until payment of the price is valid as against those who purchase the same with notice of the condition and creditors who become such with knowledge of the vendor's rights and where no false credit has been induced by the ostensible owner- ship and possession of the vendee.' " In the case of Singer Manufacturing Company v. Converse, 23 Colo. p. 247, the ordinary sewing machine lease was held to be good, even as against a bona ftde creditor without notice. ■ " It is held, however, that where the vendee assumes an unconditional obligation to pay for the chattels that the sale is not conditional and a contract that the title shall remain in the vendor is nothing more or less than an attempt, to create a mortgage and is invalid unless filed under the chattel mortgage act." The instrument in question in Singer Manufacturing Company v. Converse, above referred to, was in the following form : LEASE. This certifies that I have received 1 6 CONDITIONAL SALES AND BAILMENTS. from the Singer Sewing Machine Company one Singer sewing machine, with apparatus belonging thereto, all in good order and valued at $70, which I am to use with care, and keep in like good order, and for the use of which I am to pay as follows : $5.00 cash on the de- livery of this agreement, the receipt whereof is hereby acknowledged and accepted as payment for the rent of the first month only, and then at the rate of $5.00 per month, payable in advance, on the loth day of each month, hereafter, for six months, at its agency in Den- ver City, Colo., without notice or demand. But if de- fault shall be made in either of the payments, or if I shall sell, or offer to sell, remove or attempt to remove the said machine from my aforesaid residence, without the written consent of the Singer Sewing Machine Company, then and in that case I agree to return the same, and that it or its agent may resume actual posses- sion thereof; and I hereby authorize and empower the Singer Sewing Machine Company, or its agent, to enter the premises wherever the said machine may be, and take and carry the same away, hereby .waiving any action for trespass or damages therefor, and disclaiming any right of resistance thereto ; and also waive all right of homestead or other exemptions, under laws of said state as against this obligation. Witness my hand and seal this .... day of 18 . . . (Signed) In Tufts V. Beach, 8 Colo. Ct. Ap. 33, L. bought of T. a soda fountain and paid part cash and gave 36 notes for the balance. To secure the notes he delivered a cer- COLORADO. 17 tificate substantially in the following form : " Know all men by these presents that I, C. E. L., am justly and truly indebted unto J. W. T. in a certain sum of money evidenced by 36 notes (describing them) which said notes were given by me for certain apparatus condition- ally purchased of said J. W. T. and now at my place of business. The conditions of the purchase being that the possession of the property is to remain with me until default in payment, but title to same shall not pass to me, but until said notes are paid shall remain in the said Tufts." This was understood by the parties to be a chattel mortgage, and was acknowledged, filed, recorded and indexed as such. It was held to be a chattel mortgage and not a conditional sale ; and that it gave notice to a subsequent creditor and was superior to the lien of a levy under his attachment. Chattel Mortgage Statute : The following are provisions of the chattel mortgage law. (Mills' Annotated Statutes, chapter 25.) Section 387 provides for record by the recorder of the county where the property or the greater part thereof is situated; and that from such time of record it shall be valid until the maturity of the last install- ment of the mortgage debt, but not to exceed two years if the principal do not exceed $2,500; not to exceed five years if between $2,500 and $20,000; and not to exceed ten years if over $20,000; provided, however, that the conveyance provides for the property remain- ing with the mortgagor ; also provided that if the debt 1 8 CONDITIONAL SALES AND BAILMENTS. exceed $2,500, a sworn statement of the mortgagee shall be recorded annually, showing amount remaining unpaid, etc. Section 388 provides that mortgages to secure less than $300, need not be recorded, but only filed. Section 391. " The provisions of this act shall be deemed to extend to all such bills of sale, deeds of trust and other conveyances of personal property as shall have the effect of a mortgage or lien upon said property." Laws 1899, chap. 86 gives the mortgagee thirty days after maturity in which to take possession, and the mortgagor an equal time in which to pay. Certificate of acknowledgment. The following is the certificate of acknowledgment of chattel mortgages prescribed by Mills' Annotated Statutes, § 386 : This mortgage was acknowledged before me by A. B. (here insert the name of the mortgagor) this day of A.D. i CONNECTICUT. ^9 CONNECTICUT. COimtACT MXTST BE BECOBDEI}. By whom executed: Both parties. In what ofUce recorded: Town Clerk. Within what time: Reasonable. How long effective: Not specified. How time extended: Not specified. Statute. (Laws 1895, chapter 212.) " Chapter CXLVH of the public acts of 1893 is hereby amended to read as follows: " § I. All contracts for the sale of personal property, except household furniture, musical instruments, bicy- cles, and such property, as is by law exempt from at- tachment and execution, conditioned that the title thereto shall remain in the vendor after delivery, shall be in writing, describing the property, and all condi- tions of said sale, acknowledged before some competent authority, and recorded within a reasonable time in the town clerk's office in the town where the vendee re- sides. " § 2. All conditional sales of personal property which shall not be made in conformity with the pro- visions of the preceding section shall be held to be abso- lute sales, except as between the vendor and the vendee or their personal representatives, and all such property shall be liable to be taken by attachment and execution for the debts of the vendee, in the same manner as any other property not exempted by law." »o CONDITIONAL SALES AND BAILMENTS. Erom attorney's letter. " Hartford; Conn.^ August 14, 1899. " We usually execute such bills of sale as an ordinary- bill of sale passing title upon condition, specifying un- der the head of condition all those that enter into the bargain, and then execute the paper by both parties with all the formalities of a deed, and have the same re- corded in the land records in the town where the vendee lives." Certificate of acknowledgment. No form of certificate of acknowledgment is pre- scribed. The following form is in general use : State of ) County of J ^^" (Date.) Personally appeared A. B., signer and sealer of the foregoing instrument, and acknowledged the same to be his free act and deed, before me. (Signature and title.) DELAWARE— DISTRICT OP COLUMBIA. 2* DELAWARE. BECOBD OB. PILING TJNNECESSAIIY. From attorney's letter. " DovERj Delaware, June 19, 1899. " The sale of personal property upon the condition that the title shall remain in the vendor until payment in full is made is valid against all the world. We have no statute on the subject, but this is the ruling in our court. There will be no advantage in leasing the prop- erty." DISTRICT OF COLUMBIA. RECORD OR EILIWG UNNECESSARY. From attorney's letter. "Washington, D. C, June 15, 1899. " A contract of conditional sale is valid in this juris- diction, without record, as against creditors and bona iide purchasers from the vendee. It is a matter of in- difference whether the contract takes the form of a lease or the form of a conditional sale, so long as the instru- ment clearly shows and expressly states that the title is retained. Congress made an effort to require a record of such agreements but through a mistake failed to ac- complish that end." The following Act of Congress is undoubtedly re- ferred to in the above letter. It will be observed that it 22 CONDITIONAL SALES AND BAILMENTS. applies only " where the property has not been de- livered," language appropriate in respect to chattel mortgages, but singularly inappropriate to conditional sales, and rendering the act ineffectual as to them. Acts of Congress, 1896, chap. 214. " Be it en- acted ", etc. " That in the District of Columbia no bill of sale, conditional sale, mortgage, deed of trust, or any conveyance, in whole or in part, of personal prop- erty or chattels, where the property has not been de- livered, through or by which title is claimed to, or a lien or claim is retained or created in such personal property or chattels, shall be good or valid against a subsequent innocent purchaser for value and without notice, unless such bill of sale, conditional sale, mort- gage, deed of trust, or other writing has been delivered for record in the oflfice of the recorder of deeds in said District prior to the sale to such innocent purchaser; and all such instruments shall take effect and be valid from the time when such instrument shall have been delivered to the recorder for record, and the recorder shall endorse on each instrument aforesaid the day and hour of delivery of the same to him to be recorded." FLORIDA. as FLOBIDA. ooittSact must be BKOOBSEI). By whom executed: Not specified. In what oiRce recorded: Not specified. ' Within what time: Not specified. How long effective: Not specified. How time extended: Not specified. Statute. (R. S. § 1994.) " When any loan of goods and chattels shall be pre- tended to have been made to any person, with whom or those claiming under him possession shall have re- mained for the space of two years without demand and pursued by due process of law on the part of the pre- tended lender, or where any reservation or limitation shall be pretended to have been made of a use or prop- erty by way of condition, reversion, remainder or other- wise in goods and chattels and the possession thereof shall have remained in another as aforesaid, the same shall be taken, as to the creditors and purchasers of the persons aforesaid so remaining in possession, to be fraudulent within this chapter, and the absolute prop- erty shall be with the possession, unless such loari, res- ervation or limitation of use or property were declared by will or deed in writing, proved and recorded." The courts hold the above statute to be applicable "to conditional sales. Hudnall v. Paine, 39 Fla. 67. The word " proved " as used above, means the same as acknowledged. 24 CONDITIONAL SALES AND BAILMENTS. Certificate of acknowledgment. There is no prescribed form. The following is ap- proved : State of i County of \^^-- On this day personally appeared before me, M. N. (official title), A. B., to me well known as {or, to me satisfactorily proven to be), the person described in and who executed the foregoing instrument, and acknowl- edged that he executed the same for the purposes therein expressed and prays that it may be admitted to record. In witness whereof, I have hereunto set my hand and official seal at , this .... day of , 19 . . (Seal) M.N. (Official title.) GEORGIA. 25 GEORGIA. CONTBACT MUST BE REOOBDED. By whom executed: Not specified. In what office recorded: Clerk of Superior Court. Within what time: Thirty days. How long effective: Not specified. How time extended: Not specified. Statute. (Code 1895, §§ 2776, 2777, 2726.) " § 2776. Whenever personal property is sold and de- livered with the condition affixed to the sale, that the title thereto is to remain in the vendor of such personal property until the purchase price thereof shall have been paid, every such conditional sale, in order for the reser- vation of title to be valid as against third parties, shall be evidenced in writing, and not otherwise. And the written contract of every such conditional sale shall be executed and attested in the same manner as mortgages on personal property; as between the parties them- selves, the contract as made by them shall be valid, and may be enforced whether evidenced in writing or not. " § ^yyj. Conditional bills of sale must be recorded within thirty days from their date, and in other respects shall be governed by the law relating to the registration of mortgages." " § 2726. Mortgages on realty must be recorded in the county where the land lies ; on personalty, in the county 26 CONDITIONAL SALES AND,BAILMENTS. where the mortgagor resided at the time of its execution, if a resident of this state. If a non-resident, then in the county where the mortgaged property is. If a mort- gage be executed on personalty not within the limits of this state, and such property is afterwards brought within the state, the mortgage shall be recorded ac- cording to the above rules within six months after such property is so brought in. All chattel mortgages of stocks of goods, wares and merchandise, or other per- sonal property, shall be recorded, in case the same is upon property or goods located in some other county than that of the mortgagor's residence, in the county where said goods or personal property is located at the time of the execution of said mortgage, in addition to the record of said mortgage in the county of the mort- gagor's residence." Certificate of acknowledgment; The following form of certificate of acknowledg- m.ent is prescribed by statute in Georgia : \ State of County of \ ^^■ Before me , the undersigned (naming officer and title), personally came , to me known to be the person described in and who executed the foregoing conveyance, and acknowledged the same to be his free act and deed. In witness whereof, I have hereunto set my hand and seal, this .... day of , 19 . . (Signature and title.) IJDAHO- ILLINOIS. . 2? IDAHO. HO STATTTTE OB DECISION. Fr&m attorney's letter. " Boise, Idaho, June 22, 1899. " We have no statutes relating to the subject of your letter and I am not aware that our courts have ever passed upon the question." ILLINOIS. CHATTEL MORTGAGE THE ONLY PROTECTION. From attorney's letter. " Chicago, June 14, 1889. " A chattel mortgage, duly acknowledged and re- corded, is the only protection against claims of third parties in the matter of the transfer of personal prop- erty in the state of Illinois." The foregoing does .not refer to conditional sales of railway rolling stock, reserving title in the vendor, or leases or loans thereof. Such contracts are by Laws 1893, page 166, made void unless evidenced by writing, duly acknowledged by the vendee, lessee or bailee, and recorded, or a copy filed, in the office of the secretary of state ; and unless the ' name of the vendor, lessor or bailor be marked on both sides of each locomotive or car so sold, leased or loaned. 28 CONDITIONAL SALES AND BAILMENTS. It has been held that the recording of a contract of conditional sale in the manner required for a chattel mortgage is not notice to third persons. Gilbert v. National Cash Register Co., 52 S. E. Rep. 22. (Illi- nois Supreme Court, Oct. 24, 1898. Chattel mortgagee statutes. (Stat. 1897, 990, §§ 1-4.) " § I. Be it enacted by the People of the State of Illinois, represented in the General Assembly: That no mortgage, trust deed or other conveyance of personal property having the efifect of a mortgage or lien upon such property shall be valid as against the rights and interests of any third person, unless possession thereof shall be delivered to and remain with the grantee, or the instrument shall provide for the possession of the property to remain with the grantor, and the instru- ment is acknowledged and recorded as hereinafter di- rected; and every such instrument shall, for the pur- poses of this act, be deemed a chattel mortgage. " § 2. Such instrument shall be acknowledged before a justice of the peace of the town or precinct where the mortgagor resides ; or, if there be no acting justice of the peace in the town or precinct where the mortgagor resides, then such instrument ma,y be acknowledged before a county judge of the county in which the mort- gagor resides ; or, if the mortgagor is not a resident of this state at the time of making the acknowledgment, then before any officer authorized by law to take ac- knowledgment of deeds. " The certificate of acknowledgment may be in the following form : ILLINOIS. «9 " This (name of instrument) was acknowledged be- fore me by (name of grantor) (when acknowledgment made by a resident insert words ' and entered by me ' ) this .... day of , 19 ... . Witness my hand and seal. ( Name of officer. ) ( Seal. ) " § 3. If the acknowledgment is by a resident of this state, the justice of the peace or county judge shall enter in his docket a memorandum thereof substan- tially as follows: " A. B. (name of mortgagor) to C. D. (name of mortgagee), mortgage of (here insert description of the property as in the mortgage). Acknowledged this .... day of , 19 . . " § 4. Such mortgage, trust deed or other convey- ance of personal property acknowledged as pro- vided in this act, shall be admitted to record by the re- corder of the county in which the mortgagor shall re- side at the time when the instrument is executed and recorded; or, in case the mortgagor is not a resident of this state, then in the county where the property is situated and kept; and shall thereupon, if bona Ude, be good and valid from the time it is filed for record until the maturity of the entire debt or obligation, or extension thereof as hereinafter specified: Provided such time shall not exceed two years from the filing of the mortgage, unless within thirty days next prece- ding the expiration of such two years (or its maturity - within such two years) the mortgagor and mortga- gee, his or their agent or attorney, shall file or record 30 CONDITIONAL SALES AND BAILMENTS. in the office of the recorder of deeds where the original mortgage is recorded, also with the justice of the peace upon whose docket the same was entered, an affidavit, * * * and thereupon the mortgage lien shall be extended two years from the filing of the affidavit or until the earlier maturing of the indebtedness." INDIANA. 31 INDIANA. CHATTEI, MOKTGAGE THE ONLY PROTECTION. Fram attorney's letter. " Indianapolis, June 20, 1899. " Where a person is invested with the apparent own- ership of articles which are of a character indicating that they are to be resold, a good title would pass under the laws of this state to a bona fide purchaser, notwith- standing the reservation of title in the original vendor. The law in Indiana proceeds upon the theory that where a party is invested with all the indicia of owner- ship and a party without notice of any reservation of title acts upon this assumption, he is protected as against any secret agreement or contract entered into between the original vendor and vendee. I do not know of any instrument which would be valid and binding in this state and notice to a bona fide pur- chaser for value under the circumstances set forth in your lettei", other than a chattel mortgage." ' Chattel mortgage statute. (Horner's Annotated Stat- utes, §§ 4913, 4914-) " § 4913. No assignment of goods, by way of mort- gage, shall be valid against any other person than the parties thereto, where such goods are not delivered to the mortgagee or assignee and, retained by him, unless such assignment or mortgage shall be acknowledged, 3* CONDITIONAL SALES AND BAILMENTS. as provided in case of deeds of conveyance, and re- corded in the recorder's office of the county where the mortgagor resides, if he reside in this state, and if not a resident of the state, then in the county where said property is situated, within ten days after the execu- tion thereof. " § 4914. Every such mortgage shall be considered as recorded from the time it shall be left at the proper register's office for that purpose." Certificate of acknowledgment. Approved by Horner's Annotated Statutes, §§ 2947, 2950. The following, or any other form substantially the same, shall be a good and sufficient form of acknowl- edgment of any deed or mortgage : Before me, E. F. (a judge or justice, as the case may be) , this .... day of , A. B. acknowledged the execution of the annexed deed (or mortgage, as the case may be). The certificate must be under the hand and seal of the officer taking the same. INDIAN TERRITORY — IOWA. 33 INDIAN TEKRITORY. BEOOBD OB PILING xrNNECESSABT. From attorney's letter. " Muscogee^ Indian Ter., June 20, 1899. Our courts hold that sudh a contract is vahd." IOWA. COITTBACT MUST BE BEOOBDES. By whom executed: Vendor or lessor. In what oMce recorded: County Recorder. Within what time: Not specified. How long effective: Not specified. How time extended: Not specified. Statute. (Code of 1897, §§ 2905, 2906.) " § 2905. No sale, contract or lease, wherein the transfer of title or ownership of personal property is made to depend upon any condition, shall be valid as against any creditor or purchaser of the vendee or lessee in actual possession obtained in pursuance thereof, without notice, unless the same be in writing, executed by the vendor or lessor, acknowledged and recorded the same as chattel mortgages. " § 2906. No sale or mortgage of personal property, where the vendor or mortgagor retains actual posses- 3 34 CONDITIONAL SALES AND BAILMENTS. sion thereof, is valid against existing creditors or sub- • sequent purchasers, without notice, unless a written instrument conveying the same is executed, acknowl- edged like conveyances of real estate, and filed for rec- ord with the recorder of the county where the holder of the property resides. But incumbrances on the property sold, given to secure the purchase price, need only be signed and acknowledged by the purchaser." Certificate of acknowledgment. The following are the forms of certificate of ac- knowledgment approved by the Code: (For individual.) State of I ^^ . County of ) On this day of , A. D , before me personally appeared , to me known to be the person named in and who executed the foregoing in- strument, and acknowledged that he executed the same as his voluntary act and deed. Notary Public in and for said couHty. (Seal.) My commission expires (For corporation or joint-stock association.) State of i County of \ ss.. On this .... day of A. D , before me appeared , to me personally known, who IOWA. 35 being by me duly sworn, did say that he is the presi- dent (or other officer or agent) of the , and that the seal affixed to said instrument is the corporate seal of said corporation (or association) ; (or add at end " and that said corporation has no corporate- seal "), and that said instrument was signed and sealed in behalf pf said corporation by authority of its board of directors, and said acknowledged said instrument to be the voluntary act and deed of said corporation. (Signature, seal, etc., as above.) 36 CONDITIONAL SALES AND BAILMENTS. KANSAS. CONTRACT MUST BE FILED. By whom executed: Not specified. In what office Hied: County Register of Deeds. Within what time: Forthwith. How long effective: One year. How time extended: Refile with affidavit. Statutes. (Gen. Stats. 1897, chap. 120, §§ 13, i, 4, 5.) " § 13. Any and all instruments in writing or prom- issory notes now in existence or hereafter executed, evidencing the conditional sale of personal property, and that retain the title to the same in the vendor until the purchase price is paid in full, shall be void as against innocent purchasers or the creditors of the vendee, un- less the original instrument or a true copy thereof shall have been deposited in the office of the register of deeds in and for the county wherein the property shall be kept, and when so deposited shall be subject to the law applicable to the filing of chattel mortgages; and any conditional verbal sale of personal property reserving to the vendor any title in the property sold shall be void as to creditors and innocent purchasers for value." " § I. Every mortgage or conveyance intended to operate as a mortgage of personal property, which shall not be accompanied by an immediate delivery and be followed by an actual and continued change of pos- session of the things mortgaged, shall be absolutely KANSAS. 37 void as against the creditors of the mortgagor, and as against subsequent purcha-sers and mortgagees in good faith, unless the mortgage or a true copy thereof shall be forthwith deposited in the office of the register of deeds in the county where the property shall then be situated, or if the mortgagor be a resident of this state, then of the county of which he shall at the time be a resident." " § 4. Every mortgage so filed shall be void as against subsequent purchasers or mortgagees in good faith, after the expiration of the term of one year from such filing, and each year thereafter, unless the mort- gagee, his agent or attorney shall make an affidavit ex- hibiting the interest of the mortgagee in the property at the time last aforesaid, claimed by virtue of such mortgage, and if said mortgage is to secure the pay- ment of money, the amount yet due and unpaid. Such affidavit shall be attached to and filed with the instru- ment or copy on file to which it relates. " § 5. If such affidavit be made and filed before the purchase of such mortgaged property shall be made, or other mortgage deposited or lien obtained thereon in good faith, it shall be as valid to continue in effect such mortgage as if the same had been made and filed within the period above provided." Form of affidavit for renewal. State of ') County of \ ^^•' being duly sworn, says he is the (agent of the) vendor named in a certain contract of 38 CONDITIONAL SALES AND BAILMENTS. conditional sale bearing date the day of , 19 . . , made and executed by , as ven- dor and by as vendee, and filed in the office of the register of deeds of county, state of Kansas, on the. . . .day of , 19. ., at. . . . M., given in consideration of the sum of . $ and interest, being the purchase price of certain property then being and situate in said county; and that there remains unpaid of the said purchase price mentioned in said contract, the sum of $ and interest thereon from the. . . .day of , 19. ., which sum is the amount of interest in the property described in said contract, claimed by by virtue thereof. Sworn to before me, this ) day of 19. . ) KENTUCKY. 39 KENTUCKY. CHATTEL MOBTOAQE THE ONLY FBOTECTIOU'. From attorney's letter. " Louisville, Ky., June 14, 1899. " By the decisions of the courts of this state, a con- tract for the sale of personal property, which provides that the title shall remain in the vendor until fully paid for in accordance with the terms of the contract, ope- rates only as a chattel mortgage between the immediate parties to the contract. It is as good as if recorded, however, as between the immediate parties. It is not good as against a purchaser for value, who has no no- tice of the equity existing between the parties ; and the only way for a seller of personal property to protect himself properly is to take a regular chattel mortgage, and have it recorded in the county clerk's office of- the county where the purchaser resides. " There is another kind of contract, such as the old sewing machine contract, where the writing provides that a machine worth $50 is merely leased to the par- ties for a period of ten months at a rental of $5.00 per month, and notwithstanding the contract reserves the right to take possession at any time upon failure to pay, such provision is not enforcible under the law of our state. It must be a bona Me rental or sale. It cannot be both; and while the seller or lessor in such cases is still entitled to his lien as against the party to the contract, yet the contract is not enforcible after the 40 CONDITIONAL SALES AND BAILMENTS. property passes into the possession^ of the bona fide purchaser for value without notice. The only way for a vendor to completely protect himself is to take a chat- tel mortgage and have it recorded as stated above." Chattel mortgage statute. (Kentucky Statutes, §§ 495, 496.) " § 495. All deeds and mortgages and other instru- ments of writing which are required by law to be re- corded, to be effectual against purchasers without no- tice, or creditors, shall be recorded in the clerk's office of the court of the county in which the property con- veyed, or the greater part thereof, shall be. " § 496. No deed or deed of trust or mortgage con- veying a legal or equitable title to real or personal es- tate shall be valid against a purchaser for a valuable consideration, without notice thereof, or against cred- itors, until such deed shall be acknowledged or proved according to law, and lodged for record." LOUISIANA— MAINE. 4i LOUISIANA. REOOED OR FILIHG UNNECESSARY. From attorney's letter. " New Orleans^ June 20, 1899. " I beg to state that while there is no statute in Louisiana regulating conditional contracts for the sale of machinery, such contracts are held valid by the Louisiana courts." MAINE. CONTRACT MUST BE RECORDED. By whom executed: Not specified. In what oMce recorded: Town Clerk. Within what time: Not specified. How long effective: One year after due. How time extended: Not specified. Statute. (R. S. chap. 1 11, § 5, as amended by Laws 1895, chap. 32.) ^ " § S- No agreement that personal property bar- gained and delivered to another, shall remain the prop- erty of the lessor till paid for, is valid unless the same is in writing and signed by the person to be bound thereby. And when so made and signed, whether said agreement is, or is called a note, lease, conditional sale, 4« CONDITIONAL SALES AND BAILMENTS. purchase on installments, or by any other name, and in whatever form it may be it shall not be valid, except as between the original parties thereto, unless it is re- corded in the office of the clerk of the town in which the purchaser resides at the time of the purchase. The fee for recording the same shall be the same as that for re- cording mortgages of personal property. All said agreements, whether recorded or not, shall be subject to redemption, but the title may be fixed in the same man- ner as is provided for mortgages of personal prop- erty." Certificate of acknowledgment. No form of certificate of acknowledgment is pre- scribed. The following is in general use: State of Maine . . ) County of ) ^^" (Date) Personally appeared the above-named .... , and acknowledged the foregoing instrument to be his free act and deed. Before, me. (Signature and title.) MARYLAND. 43 ULARTLATSfD. CHATTEIi MORTGAGE THE ONLY PBOTECTIOH. From attorney's letter. • " Baltimore, June 12, 1899. " I think a recorded chattel mortgage is under our laws the only real protection to the vendor under any contract for future payment." Decision. The following decision of the Supreme Court bears out the above conclusion: Where a contract of sale contained a stipulation that the title to the goods should not Vest in the vendee until full payment of the price, yet a bona fide vendee or mortgagee from the party in possession under the con- tract obtains a good title if he takes without notice of the condition. Lincoln v. Quynn, 68 Md. 299. Statute. Public General Laws, article 21, § 84, provides for contracts of conditional sale or rental of railroad equipments and rolling stock, for a term of not to exceed ten years. " Such contracts shall be in writing, and shall be acknowledged and recorded as deeds in the county in which the said vendor or lessor has its principal office in this state." The chattel mortgage law of Maryland, Public Gen- eral Laws, art. 21, is briefly as follows: 44 CONDITIONAL SALES AND BAILMENTS. Section 44 provides that bills of sale must be re- corded within twenty days after their date, in the county ,where the vendor resides, or if a non-resident, where the property is located, if in Baltimore, in the city clerk's office, otherwise in the county clerk's office. " § 45. A mortgage of personal property shall be executed, acknowledged and recorded as bills of sale." Section 47 provides that such instruments are valid as to third parties only from time of recording. " § 49. No bill of sale or mortgage of personal prop- erty shall be valid, except as between the parties, unless the bargainer or vendee or mortgagee, or some one of them, or the agent of some one of them, shall make the affidavit required to be made by mortgagees of real estate, and such affidavit may be made at any time before recording, and before any person authorized to take the acknowledgment of such bill of sale or mort- gage." " § 30. No mortgage shall be valid except as between the parties thereto, unless there be endorsed thereon an oath or affirmation of the mortgagee that the con- sideration in said mortgage is true and bona iide as therein set forth." Chattel mortgage form. The following form of chattel mortgage is prescribed by Public General Laws, art. 21, § 61 : I, , of county, , being now indebted to of county , in the sum of dollars, with interest from , in consideration there- MARYLAND. 45 of do hereby bargain and sell to the said ., the following property : Provided, that if I, the said , shall pay to the said , the said sum of dollars, with the interest thereon, on or before the day of , then these presents shall be void. Witness my hand and seal, this day of . . . . Oath. The following oath or affirmation must be endorsed on the above. State of ) County of \ ^^•' , being duly sworn (or affirmed), says that he is the mortgagee named in the within mortgage, and that the consideration in said mortgage is true and bona fide as therein set forth. Sworn to before me, this ] day of > Certificate of acknowledgment. The following form of certificate of acknowledgment of execution of instruments for record is prescribed by Public General Laws, art. 21, §§ 65, 67. State of ) County of ) I hereby certify that on this .... day of , in the year i. . ., before the subscriber '(here insert style of the officer taking the acknowledgment), personally 46 CONDITIONAL SALES AND BAILMENTS. appeared (here insert the name of the person making the acknowledgment), and acknowledged the forego- ing deed to be his act. (If taken without the state of Maryland, add:) In testimony whereof, I have caused the seal of the court to be affixed (or, have affixed my official seal,) this day of ... . A. D., i . . . . (Name and title of officer.) (Seal.) MASSACHUSETTS. 47 MASSACHTJSETTS. BECOBD OB FILING UNNECESSARY. Prom attorney's letter. " Boston, June 13, 1899. " Your understanding is correct, that a contract of conditional' sale, title to remain in the vendor until purchase price is paid, is valid in this state, as against creditors of vendee, Hussey v. Thornton, 4 Mass. 405; Marsfon v. Baldwin, 17 Mass. 606, etc.; and against bona fide purchasers, Coggill v. Hartford, and New Haven R. R. Co., 3 Gray, 545; Armour v. Pecker, 123 Mass. 143, and many other cases. No record is necessary. I do not know of any advantage in making the instrument in the form of a lease. " Unless altered by legislation of the present year (which I do not think is the case) the rights of vendors of household furniture under conditional sales are re- stricted by Pub. Stat. chap. 192, § 13; St. 1884, chap. 313; St. 1892, chap. 411; St. 1898, chap. 545. " There is no other statute, so far as I know, relating to conditional sales, except Pub. Stat. chap. 203, § 74, making it a criminal offense to sell property held under such a contract before title is perfected." 48 CONDITIONAL SALES AND BAILMENTS. UIGHIGAN. BECOBD OB FILING UNNECESSABT. From attorney's letter. " Detroit, Michigan, June 14, 1899. "A contract of conditional sale providing for de- livery of property payable in installments, title to re- main in vendor until purchase price is paid, is valid in this state as against creditors and bona Me purchasers from vendee, without record or filing. " I do not see that any advantage could be gained by making the instrument in the form of a lease." IfflNNESOTA. OOITTBACT MUST BE FILED. By whom executed: Not specified. In what office filed: Town, City or Village Clerk. Within what time: Not specified. 'How long effective: One year after due. How time extended: Not specified. Statutes. (Statutes of Minnesota, 1894, vol. i, §§ 4148- 4153; 2729-31.) " § 4148. Every note of hand, or other evidence of indebtedness, or contract, the conditions of which are that the title or ownership to the property for which said note or other evidence of indebtedness or contract MINNESOTA. 49 is given, remains in the vendor, shall be absolutely void as against creditors of the vendee, and as against sub- sequent purchasers and mortgagees in good faith, un- less the note, or other evidence of indebtedness or con- tract, or true copies thereof, or, if said contract be oral, then a memorandum expressing the terms and con- ditions thereof, be filed as hereinafter provided. " § 4149. Every such note or other evidence cf in- debtedness or contract, or a copy thereof, shall be filed in the town, city or village where the vendee resides at the time of the making thereof. In each town such instruments shall be filed in the office of the town clerk thereof ; and. in the several cities and villages in the office of the recorder, clerk or other officer in whose custody the records are kept; and each of the officers hereinbefore named shall file all such instruments when presented for that purpose, endorse thereon the time of reception, the number thereof, and shall enter in a suitable book to be provided by him at the expense of the town, city or village, with an alphabetical index thereto, under the head of vendor and vendee, respect- ively, the names of each party to such instrument, and in separate columns opposite such names the number of the instrument, the date, the amount thereof, when due, and the date of filing the same. Such instrument or copy thereof shall remain on file for the inspection of all persons interested. " § 4150. Every note, or other evidence of indebted- / ness, or contract, filed in pursuance of this chapter, shall be held and considered to be full and sufficient notice, to all persons interested, of the existence and 4 50 CONDITIONAL SALES AND BAILMENTS. conditions thereof, but shall cease to be notice;^ as against the creditors of the vendee, and subsequent purchasers and mortgagees in good faith, after the ex- piration of one year from the day on which such note, or other evidence of indebtedness, or contract, became due. " § 415 1. A copy of any such note or other evidence of indebtedness, or contract, or copy, filed and endorsed as aforesaid, together with any statement made in pur- suance of this act, when certified by the clerk or other proper officer to be a-i;rue copy of the original on file in his office, shall be received in evidence in like man- ner and of like effect as the original instrument or copy filed or endorsed. " § 4152. Whenever any note or other evidence of indebtedness, or contract, filed under the provisions of this act, has been paid, or the conditions thereof satisfied, the vendor, or his assignee or personal repre- sentatives, shall give to the vendee, or his assignee or personal representatives, a certificate in writing, under his hand, stating the date of the instrument, and that the same has been paid and discharged in full ; and on delivering said certificate in writing to the officer with whom such instrument is filed, the said officer shall deliver said instrument to the person producing said certificate, and shall file said certificate in his office, en- dorsing thereon the name of the county, town (or city or village) and the true date of filing the same, and shall write the word ' satisfied ' with the date op- posite such instrument, in the book in which such in- struments are entered. MINNESOTA. . S' " § 4153. The town clerk, and the register, clerk or other officer of any city or village, in whose custody the records of such village or city are kept, shall receive the sum of ten cents for filing every note, contract or other evidence of indebtedness, to be paid by the party presenting the same for filing, and the sum of ten cents for filing every certificate of discharge, to be paid by the party presenting the same for filing, which fee must be paid before such instruments or certificates shall be entitled to record." Sections 2729-2731 provide that contracts of con- ditional sale of railroad equipments or rolling stock, may be made, reserving title in the grantor for a term of credit not to exceed ten years ; also that in leases of such articles a stipulation may be made to the same effect, with the added stipulation that the rentals re- ceived may be applied and treated as purchase money^ That such contracts, to be good against purchasers and creditors, must be acknowledged by the vendee or lessee, and filed or recorded in the office of the register of deeds of the county where the vendee or lessee has his principal office or place of business in the state, and in the office of the secretary of state; and that every engine or car so sold or leased, shall be marked^plainly with the name of the vendor or lessor. 5* CONDITIONAL SALES AND BAILMENTS. miSSISSIFFI. BECOBD OB FILINO UNNECESSABY. From attorney's letter. " Jackson, Mississippi, June 13, 1899. " Conditional sales are not regulated by statute in this state, and we have no requirement that writings evidencing such sales shall be recorded. The whole matter is governed, with us, by the common law." mssouRi. CONTBACT MUST BE BECOBDED. By whom executed: Not specified. In what ofUce recorded: County Register of Deeds. Within what time: Not specified. How long effective: Not specified. How time extended: Not specified. Statute. (Rev. Stat. 1889, vol. 2.) " § 5180 (as amended in 1895). In all cases where any personal property shall be sold to any person, to be, paid for in whole or part in installments, or shall iae leased, rented, hired or delivered to another on condition that the same shall belong to the person purchasing, leasing, renting, hiring or receiving the same whenever the amount paid shall be a certain MISSOURI. 53 sum, or the value of such property, the title to the same to remain in the vendor, lessor, renter, hirer, or deliverer of the same, until such sum, or the value of such property, or any part thereof, shall have been paid, such condition, in regard to the title so remaining until such payment, shall be void as to all subsequent purchasers in good faith, and creditors, un- less such condition shall be «evidenced by writing exe- cuted, acknowledged and recorded as provided in cases of mortgages of personal property. "§ 5181. Whenever such property is so sold or leased, rented, hired or delivered, it shall be unlawful for the vendor, lessor, renter, hirer or deliverer, or his or their agent or servant, to take possession of such property without tendering or refunding to the pur- chaser, lessee, renter or hirer thereof, or any party re- ceiving the same, the sum or sums of money so paid, after deducting therefrom a reasonable compensation for the use of such property, which shall in no case exceed twenty-five per cent of the amount so paid, any- thing in the contract to the contrary notwithstanding, and whether such condition be expressed in such con- tract or not, unless such property has been broken or actually damaged, and then a reasonable compensation for such breakage or damage shall be allowed." " § 5176. No mortgage or deed of trust of personal property hereafter made shall be valid against any other person than the parties thereto, unless possession of the mortgaged or trust property be delivered to and re- tained by the mortgagee or trustee or cestui que trust, or unless the mortgage or deed of trust be acknowl- 54 CONDITIONAL SALES AND BAILMENTS. edged or proved and recorded in the county in which the mortgagor or grantor resides, in such manner as conveyances of land are by law directed to be acknowl- edged or proved and recorded, or unless the mort- gage or deed of trust, or a true copy thereof, shall be filed in the office of the register of deeds of the county where the mortgagor or grantor executing the same resides, and in the case of #he city of St. Louis, with the register of deeds for said city or, where such grantor is a non-resident of the state, then in the office of the legister of deeds of the county or city where the prop- erty mortgaged was situated at the time of executing such mortgage or deed of trust." Certificate of acknowledgement. Forms approved by Revised Statutes 1889, § 2408. (For individual) : State of ^ ^^ } County of On this .... day of , i . . . . , before me per- sonally appeared , to me known to be the person described in and who executed the foregoing instrument, and acknowledged that he executed the same as his free act and deed. (Signature and title.) (Seal.) (For corporation, same as in Iowa, which see.) MONTANA. 55 MONTANA. CONTBAOT miTST BE FILED. By whom executed: Not specified. In what ofUce Med: County Clerk. Within what time: Not specified. How long effective: , Not specified. How time extended: Not specified. Statute. (Laws 1899, page 124; Senate Bill No. 91.) " § I. All contracts, notes and instruments for the transfer or sale of personal property where the title is stipulated to remain in the vendor until the payment of the purchase price, or some part thereof, shall be in writing, and the original or a true copy thereof certi- fied by the county clerk and recorder shall be filed with the county clerk and recorder of the county where the , property is situate, otherwise any such contract, note or instrument is void as to a purchaser or mortgagee of such property prior to such filing." " § 3. Upon receipt of the purchase price, the vendor shall cause the clerk and recorder to enter satisfaction and discharge the obligation of such contract, note or instrument, and a failure for thirty days to cause such satisfaction to be made shall render the vendor liable for any actual damage sustained by any person by rea- son thereof." S6 CONDITIONAL SALES AND BAILMENTS. NEBBASKA. CONTRACT MUST BE PILED. By whom executed: Vendee. In what oMce Med: County Clerk. Within what time: Not specified. .. How long effective: Five years. How time extended: Refile within thirty days before expiration. Statute, (Compiled Statutes 1897, 3200, 3201, 3202.) " 3200 § 26. That no sale, contract or lease, wherein the transfer of title or ownership of personal property is made to depend upon any condition, shall be valid against any purchaser or judgment creditor of the vendee or lessee in actual possession, obtained in pur- suance of such sale, contract, or lease without notice, unless the same be in writing, signed by the vendee or lessee, and a copy thereof filed in the office of the clerk of the county within which such vendee or lessee re- sides ■ said copy shall have attached thereto an affidavit of such vendor or lessor, or his agent or attorney, which shall set forth the names of the vendor and vendee or lessor and lessee, a description of the prop- erty transferred and the full and true interest of the vendor or lessor therein. All such sales and transfers shall cease to be valid against purchasers in good faith or judgment or attaching creditors without notice at the expiration of five years, unless such vendor or lessor, shall, within thirty days prior to the expiration of the NEBRASKA. 57 five years from the date of such sale or transfer, file a copy thereof, verified as aforesaid, in the office of said clerk, and the said vendor or lessor may preserve the validity of his said sale or transfer of personal property by an annual filing in the manner aforesaid of such copy. (1879, § I, I02.) " 3201 § 27. The county clerk, on presentation, shall file such copy in his office, and index the same in the same manner as chattel mortgages are required to be indexed, and he shall receive therefor a fee of twenty- five cents. This act shall not be held to apply to chattel mortgages. (Id. § 2.) " 3202 § 27a. In any contract for the sale of railroad or street railway equipment or rolling stock, it shall be lawful to agree that the title to the property sold or contracted to be sold, although possession thereof may be delivered immediately, or at any time or times subsequently, shall not vest in the purchaser until the purchase price shall be fully paid or that the seller shall have and retain a lien thereon for the unpaid purchase money. And in any contract for the leasing or hiring of such property, it shall be lawful to stipulate for a conditional sale thereof at the termination of such con- tract, and that the rentals or amounts to be received under such contract may, as paid, be applied and treated as purchase money, and that the title to the property shall not vest in the lessee or bailee until the purchase price shall have been paid in full, and until the terms of the contracts shall have been fully performed, notwith- standing delivery to and possession by sueh lessee or bailee. Provided, that no such contract shall [word 58 CONDITIONAL SALES AND BAILMENTS. omitted] until the purchase: price shall have been paid in full and until the terms of the contract shall have been fully performed, notwithstanding delivery to and possession by such lessee and bailee: Provided, that no such contract shall be valid as against any subse- quent judgment creditor, or any subsequent bona fide purchaser for value and without notice, unless : I. The same shall be evidenced by an instrument executed by the parties and duly acknowledged by the vendee, or lessee or bailee, as the case may be, or duly proved be- fore some person authorized by law to take acknowl- edgments of deeds, and in the same manner as deeds are iacknowledged or proved. II. Such instrument shall be filed for record in the office of the secretary of state of this commonwealth. III. Each locomotive engine or car so sold, leased or hired, or contracted to be sold, leased or hired as aforesaid, shall have the name of the vendor, lessor or bailor plainly marked on each side thereof, followed by the word ' owner ' or ' lessor ,' or ' bailor ' as the case may be. " 3203 § 27b. The contracts herein authorized shall be recorded by the secretary of state in a book of rec- ords to be kept for that purpose. And on payment in full of the purchase money and the performance of the terms and conditions stipulated in any such contract, a declaration in writing to that effect may be made by the vendor, lessor or bailor, or his or its assignee, which declaration may be made on the margin of the record of the contract, duly attested, or it may be made by a separate instrument, to be acknowledged by the vendor, lessor or bailor, or his or its assignee, and recorded as NEBRASKA. 59 aforesaid. And for such services the secretary of state shall be entitled to a fee of $15 for recording each* of said contracts, and each of said declarations, and a fee of $2 for noting such declaration on the margin of the record." I"rom attorney's letter. "Omaha, Nebraska, June 15, 1899. " You further ask if this statute can be avoided by making the contract in the form of a lease or contract of bailment. Replying to this question, we desire to say that in the case of National Cordage Co. v. Sims, 44 Neb. 148, it is said ' that said provision has no ap- plication where the relation of vendor and vendee does not exist,' but under § 2 of chap. 32 Com. Statutes, 1 89 1, the burden would be upon the bailor to show that it wa:s a bailment and not a conditional sale." Porm of affidavit to attach to coutracC State of ) County of ) ^^•' , being duly sworn, deposes and' says that he is the (agent or, attorney of the) vendor (or lessor) named in the foregoing instrument; that the name of the said vendor (or lessor) is ; that the name of the said vendee (or lessee) is ; that the following is a description of the property thereby transferred; that the full and true interest of the. ven- dor (or lessor) is ^as follows : (State interest.) Sworn to before me, this } , . . day of 19 . . ' 6o CONDITIONAL SALES AND BAILMENTS. NEVADA; BECOBD OB FILING UNNECESSABY. From attorney's letter. " Carson City, Nev., June 19, 1899. " A contract of conditional sale, price agreed upon to be paid in installments, property to be delivered to pur- chaser but title to remain in vendor until price is fully paid, is valid as against creditors of the vendee, and has been so decided by the Supreme Court of this state in Cardinal v. Edwards, 5 Nev. 36, wherein it is held that in such sale, until the installments were paid the contract was executory and the right of property re- mained in the vendor." NEW HAMFSHIEE. SCEMOBANDtTM STtTST BE BECOBBES. By whom executed: Vendee. In what ofUce recorded: Town Clerk. Within what time: Thirty days, except as to purchasers and credit- ors after record. How long effective: Not specified. How time extended: Not specified. Statute. (Pub. Stats, chap. 140, §§ 23-26, 7, 8.) " § 23. No lien reserved on personal property sold conditionally and passing into the hands of the condi- NEW HAMPSHIRE. 6i tional purchaser, except a lien upon household goods created by a lease thereof, containing an option in favor of the lessee to purchase the same at a time specified, shall be valid against attaching creditors, or subse- quent purchasers; without notice, unless the vendor of such property takes a written memorandum, signed by the purchaser, witnessing the lien, the sum due thereon, and containing an affidavit as provided in the following section, and causes such memorandum to be recorded in the town clerk's office of the town, I. Where the purchaser resides, if within this state ; or II. Where the vendor resides, if within this state, and the purchaser does not reside in the state, or III. Where the property is situated, if neither pur- chaser nor vendor resides in the state. " § 24. Each vendor and purchaser shall make and subscribe an affidavit in substance as follows : ' We severally swear that the foregoing memorandum is made for the purpose of witnessing the lien and the sum due thereon, as specified in said memorandum, and for no other purpose whatever, and that said lien and the sum due thereon were not created for the purpose of enabling the purchaser to execute said memoran- dum, but said lien is a just lien, and the sum stated to be due thereon and owing from the purchaser to the vendor.' " § 25. When co-partners or corporations are parties to such a memorandum, the affidavit may be made and subscribed as in case of mortgages of personal prop- erty. 62 CONDITIONAL SALES AND BAILMENTS. "§ 26. If the record required by section twenty- three is made within twenty days after the property is delivered, the lien reserved shall be valid against all at- taching creditors and purchasers; but if it is not made until after the expiration of twenty days, it shall be valid against those attaching creditors and purchasers only who become such after the record." " § 7- Where co-partners are parties to mortgages of personal property, the affidavit may be made and sub- scribed by either partner in behalf of the firm. " § 8. When a corporation is a party to such mort- gage, the affidavit may be made and subscribed by any director thereof, or by any ^ person authorized by the corporation to make or to receive the mortgage." Memorandum of lien. The following form is in use : Be it known, that I, , of in the county of and state of New Hamp- shire, have this day purchased of of in the county of in said state, for the sum of , the following described goods and chattels, to- wit: (describe articles), on which there is now due to said and unpaid, the sum of , and the said has a lien upon said property for that amount, by the provisions of chap^ 30 of the Laws of 1885, and chap. 29, LaWs of 1887, it being understood that said goods and chattels are to remain the property of said , the vendor tliereof, until said sum of is fully paid by me. NEW HAMPSHIRE. ^3 Witness my hand and seal, this .... day of , 19.. (L.S.) We severally swear that the foregoing memorandum is made for the purpose of witnessing the lien, and the sum due thereon, as specified in said memorandum, and for no other purpose whatever ; and that said lien, and the sum due thereon, were not created for the purpose of enabling the purchaser to execute said memorandum, but that said lien is a just lien, and the sum stated to be due thereon is honestly due thereon, and owing from the purchaser to the vendor. (Vendor). (Vendee). State of New Hampshire ) ^^ . : , 19.. Then personally appearing said and took and subscribed the foregoing oath. Before me, Justica of the Peace. ■ 64 CONDITIONAL SALES AND BAILMENTS. NEW JEBSEY. COITTBACT MUST BE BECOBDED. By whom executed: Not specified. In what oMce recorded: Clerk of Court of Com- mon Pleas. Within what time: Not specified. How long effective: Until cancelled. How time extended: Not specified. Statute. (Laws of 1898, chap. 232, §§ 71-73.) " § 71. In every contract for conditional sale of goods and chattels hereafter made, which shall be ac- companied by an actual delivery and be followed by an actual and continued change of possession of the things contracted to be sold, all conditions and reservations which provide that the ownership of such goods and chattels is to remain in the person so contracting to sell the same, or other person than the one so contracting to buy them, until said goods and chattels are paid for, or until the occurring of any future event or contin- gency, shall be absolutely void as against the judgment creditors not having noticeHhereof , and subsequent pur- chasers and mortgagees in good faith not having no- tice thereof, whose deeds or mortgages shall have been first duly recorded, from the person so contracting to buy the same, and as to them the sale shall be deemed absolute, unless such contract for sale with such condi- tions and reservations thereon be recorded as directed in the seventy-second section of this act. NEW JERSEY. 6S " § 72. The instruments mentioned in the seventy- first section of this act shall be recorded in the office of the clerk of the Court of Common Pleas of the county wherein the party contracting to buy, if a resident of this state, shall reside at the time of the execution thereof, and if not a resident of this state, then in the said clerk's office of the county where the property so conditionally bought shall be at the time of the execu- tion of such instrument. " § 73. Every contract of sale hereafter recorded pursuant to the provisions bi the seventy-first and sev- enty-second sections of this act shall be valid against th^ creditors of the person contracting to buy and against his subsequent purchasers and mortgagees, from the time of the recording thereof until the same be cancelled of record in the manner now provided by law for cancelling of mortgages of real estate." From attorney's letter. " Jersey City, N. J., June 12, 1899. " Our statute respecting conveyances was revised in 1898 and the particular provision relating to condi- tional sales of chattels is contained in sections 71, 72 and 73 of chapter 232 of the Pamphlet Laws of 1898. " Without going into the subject deeply, I am in- clined to think that a contract such as you mention, made in the form of a lease or contract of bailment, where the character so given is merely colorable, and the contract is in reality a conditional sale, should be recorded." 5 66 CONDITIONAL SALES AND BAILMENTS. Certificate of acknowledgment or proof. No form of certificate of acknowledgment is pre- scribed. Proof of execution by corporation must be made by subscribing witness, and the following form is approved : State of ' ss • I County of I (name and official title), do hereby certify, that on the .... day of .-....., 19 .., in the county of , aforesaid, personally appealed , with whom I am personally acquainted, and whom I know to be the subscribing witness to the execution of the foregoing instrument, and who, being duly sworn by me, did de- pose, and say that he subscribed his name to, the fore- going instrument, as the subscribing witness, on the day that the same bears date, and being well acquainted with the common seal of the said (name of corpora- tion) knows that the same was and is thereto set; and that the said company did then and there sign and deliver the said instrument as their voluntary act and deed. In witness whereof, etc., I have hereunto affixed my hand and seal, this .... day of , 19 ■ . ('Seal.) (Signature and title.) NEW MEXICO -NEW YORK. 67 ITEW MEXICO. RECOKD OB I'lLING UNNECESSAKT. From attorney's letter. " Albuquerque, N. M., June 21, 1899. " We have no statute on the subject of conditional sales, but in a recent case, Tufts v. Maxwell, reported in 45 Pac. Rep. page 979, our Supreme Court laid down the law following the Supreme Court of the United' States." In the case above cited, it was held that the instru- ment in question was not a chattel mortgage, and that it was not necessary to file or record it in order to pro- tect the vendor against creditors of or purchasers from the vendee. NEW YORK. CONTRACT MUST BE FILED. By whom executed: Not specified. In what oiHce Hied: See statute, § 113. Within what time: Not specified. How long effective: One year. How time extended: Reiile within thirty days before expiration. 68 CONDITIONAL SALES AND BAILMENTS. Statute. (Laws 1897, chap. 418.) "ARTICLE IX. " CONTRACTS FOR THE CONDITIONAL SALE OF GOODS AND CHATTELS. " § I ID. Definitions. — The term ' conditional ven- dor,' when, used in this article, means the person con- tracting to sell goods and chattels upon condition that the ownership thereof is to remain in such person, until such goods and chattels are fully paid for or until the occurrence of any future event or contingency; the term ' conditional vendee,' when so used, means the person to whom such goods and chattels are so sold. " § III. Conditional sale of railroad equipment and rolling stock. — Whenever any railroad equipment and rolling stock is sold, leased or loaned under a contract which provides that the title to such property, notwith- standing the use and possession thereof by the vendee, lessee or bailee, shall remain in the vendor, lessor or bailor, until the terms of the contract as to the pay- ment of installments, amounts or rentals payable, or the performance of other obligations thereunder, are fully complied with and that title to such property shall pass to the vendee, lessee or other bailee on full payment therefor, such contract shall be invalid as to any subsequent judgment creditor of or purchaser from such vendee, lessee or bailee for a valuable considera- tion, without notice, unless " I. Such contract is in writing, duly acknowledged and recorded in the book in which real estate mort- NEW YORK. 69 gages are recorded in the office of the county clerk or register of the county in which is located the principal office or place of business of such vendee, lessee or bailee ; and unless " 2. Each locomotive or car so sold, leased or loaned, has the name of the vendor, lessor or bailor, or of the assignee of such vendor, lessor or bailor, plainly marked upon both sides thereof, followed by the word owner, lessor, bailor or assignee, as the case may be. " § 112. Conditions and reservations in contracts for sale of goods and chattels. — Except as otherwise pro- vided in this article, all conditions and reservations in a contract for the conditional sale of goods and chattels, accompanied by immediate delivery and continued pos- session of the thing contracted to be sold, to the effect that the ownership of sjich goods and chattels is to re- main in the conditional vendor or in a person other than the conditional vendee, until they, are paid for, or until the occurrence of a future event or contingency shall be void as against subsequent purchasers, pledgees or mortgagees in good faith, and as to them the sale shall be deemed absolute, unless such contract of sale, con- taining such conditions and reservations, or a true copy thereof be filed as directed in this article. " § 113. Where contract to be Med. — Such contracts shall be filed, in the city or town where the conditional vendee resides, if he resides within the state at the time of the execution thereof ; and if not, in the city or town where such property is at such time. Such contract shall be filed, in the city of New York, in the office of the register of the city and county of New York; in 7° CONDITIONAL SALES AND BAILMENTS. the city of Brooklyn, in the office of the register of the county, of Kings; in every other city or town of the state, in the office of the town clerk, unless there be a county clerk's office in the city or town, when it shall be filed in such office. "§ 114. Endorsement, entry, refiling and discharge of conditional contracts. — The provisions of the pre- ceding article relating to chattel mortgages apply to the endorsement, entry, refiling and discharge of contracts for the conditional sale of goods and chattels. The officers with whom such contracts are filed shall enter the future contingency or event required to occur before the ownership of such goods and chattels shall pass from the vendor to the vendee, and the amount due upon such contract and the time when due. The name of the conditional vendor shall be entered in the^olumn of ' mortgagees ' and the name of the conditional ven- dee in the column of ' mortgagors.' The" officers per- forming services under this article are entitled to re- ceive the same fees as for like services relating to chat- tel mortgages. " § 115 (as amended Laws 1898, chap. 354). Preced- ing section not to apply to certain articles. — The pre- ceding sections of this article do not apply to the con- ditional sale of household goods, law books, law blanks, and law office supplies, pianos, organs, safes, scales, butcher's and meat market tools and fixtures, wood cutting machinery, engines, dynamos, boilers, portable furnaces, boilers for heating purposes, threshing ma- chines, horse powers, mowing machines, reapers, har- NEW YORK. 71 vesters, grain drills and attachments, dairy sizes of cen- trifugal cream separators, coaches, hearses, carriages, buggies, phaetons and other vehicles, bicycles, tricycles, and other devices for locomotion by human power, if the contract for the sale thereof is executed in dupli- cate, and one duplicate delivered to the purchaser. "§ 116. Sale of property retaken by vendor. — Whenever articles are sold upon the condition that the title thereto shall remain in the vendor, or in some other person than the vendee, until the payment of the purchase price, or until the occurrence of a future event or contingency, and the same are retaken by the vendor, or his successor in interest, they shall be retained for a period of thirty days from the time of such retaking, and during such period the vendee or his successor in interest, may comply with the terms of such contract, and thereupon receive such property. After the ex- piration of such period, if such terms are not complied with, the vendor, or his successor in interest, may cause such articles to be sold at public auction. "§ 117. Notice of sale. — Not less than fifteen days before such sale, a printed or written notice shall be served personally upon the vendee, or his successor in interest, if he is within the county where the sale is to be held; and if not within such county, or he can not be found therein, st:;ch notice must be mailed to hi^n at his last known place of residence. " Such notice shall state : " I. The terms of the contract. " 2. The amount unpaid thereon. 72 CONDITIONAL SALES AND BAILMENTS. " 3. The amount of expenses of storage. " 4. The time and place of the sale, unless such amounts are sooner paid. "§ 118. Disposition of proceeds. — Of the proceeds of such sale, the vendor or his successor in interest may retain the amount due upon his contract, and the ex- penses of storage and of sale ; the balance thereof shall be held by the vendor or his successor in interest, sub- ject to the demand of the vendee or his successor in interest, and a notice that such balance is so held shall be served personally or by mail upon the vendee or his successor in interest. If such balance is not called for within thirty days from the time of sale, it shall be deposited with the treasurer or chamberlain of the city or village, or the supervisor of the town where such sale was held, and there shall be filed there- with a copy of the notice served upon the vendee or his successor in interest and a verified statement of the amount unpaid upon the contract, expenses of storage and of sale and the amount of such balance. The offi- cer with whom such balance was deposited shall credit the vendee or his successor in interest with the amount thereof and pay the same to him on demand after suffi- cient proof of identity. If such balance remains in possession of such officer for a period of five years, un- claimed by the person legally entitled thereto, it shall be transferred to the funds of the town, village or city, and be applied and used as other moneys belonging to such town, village or city." NEW YORK. 7S Certificate of acknowledgment. Such contracts require acknowledgment only when relating to railroad equipments. There is no prescribed form of certificate of ac- knowledgment by an individual. The following is the usual form: State of I ss • County of j On this day of , 19. ., before me, the subscriber, personally came , to me known to be the same person described in and who executed the foregoing instrument, and duly acknowledged that he executed the same. ( Signature and title. ) By corporation; form prescribed by Laws 1896, chapter 547, section 258 : State of l ss ■ County of ) On the ... . day of , in the year . . . . , before me personally came to me known, who being by me duly sworn, did depose and say that he resided in , that he is the (president or other officer) of the (name of corporation), the corporation described in and which executed the above instrument ; that he knew the seal of said corporation ; that the seal affixed to said instrument was such corporate seal; that it was so affixed by order of the board of directors of said corporation, and that he signed his name thereto by like order. (Signature and title.) 74 CONDITIONAL SALES AND BAILMENTS. If such corporation have no seal, that fact must be stated in place of the statements required respecting the seal. Statement for refiling. The provision for refiling chattel mortgages, referred to in section 114, above, is as follows: " § 95. Mortgage invalid after one year, unless state- ment is Med. — A chattel mortgage, except as otherwise provided in this article, shall be invalid as against cred- itors of the mortgagor, and against subsequent pur- chasers or mortgagees in good faith, after the expira- tion of the first or any succeeding term of one year, reckoning from the time of the first filing, unless " I. Within thirty day^ next preceding the expira- tion of each such term, a statement containing a de- scription of such mortgage, the names of the parties, the time when and place where filed, the interest of the mortgagee or of any person who has succeeded to his interest in the property claimed by virtue thereof, or " 2. A copy of such mortgage and its endorsements, together with a statement attached thereto or endorsed thereon, showing the interest of the mortgagee or of any person who has succeeded to his interest in the mortgage, is filed in the proper office in the city or town where the mortgagor then resides, if he is then a resi- dent of the town or city where the mortgage or a copy thereof or such statement was last filed; if not such resident, but a resident of the state; a true copy of such mortgage, together with such statement, shall be filed NEW YORK. 75 in the proper office of the town or city where he then resides ; and if not a resident of the state, then in the proper office of the city or town where the property so mortgaged was at the time of the execution of the mortgage." rorm of statement for refiling. I, , of the of , state of , the ( of the) vendor named in a cer- tain contract of conditional sale bearing date the .... day of^. , 19 . . , made and executed by , as vendor, and by , as vendee, and filed in the office of the .'clerk of , state of New York, on the. . . .day of , 19. ., at. .M., given in consideration of the sum of $ .... , and interest, be- ing the purchase price of certain property then being and situate in the said of , in said county of do hereby, pursuant to statute, certify and state that there remains unpaid of the said purchase price mentioned in said contract, the sum of $ . . . . and interest thereon from the. . . .day of , 19. ., which sum is the amount of said vendor's interest in the property described in said contract, claimed by by^ virtue thereof. 1 Dated the. . . .day of , 19. . (Signature.) Vendor. 76 CONDITIONAL SALES AND BAILMENTS. NOBTH CABOIINA. COITTBACT MUST BE BECOBDED. By whom executed: Not specified. In what office recorded: Register of Deeds. Within what time: Not specified. How long effective: Not specified. How time extended: Not specified. Statutes. (Code North Carolina,^ 1883, § 1275; Laws 1 89 1, chap. 240.) " § 1275. All conditional sales of personal property in which the title is retained by the bargainor, shall be reduced to writing and registered in the same manner, for the same fees and with the same legal effect as is provided for chattel mortgages." L. 1891, chap. 240. " All conditional sales of per- sonal property in which the title is retained by the bar- gainor, and which are required to be reduced to writing and registered by the Code, section 1275, shall be regis- tered in the county where the purchaser resides, or in case the purchaser shall reside out of the state, then in the county where the said personal estate or some part thereof is situated." Code 1883, § 1254, provides that " no deed of trust or mortgage for real or personal estate shall be valid at law to pass any property against creditors or pur- NORTH CAROLINA. 77 chasers for a valuable consideration from the donor, bargainor or mortgagor, but from the registration," etc. The ofiftce of the register of deeds seems to be the proper place for registration. Code 1883, § 1246, provides that "all * * * instruments requiring registration must be offered for probate or a certified copy thereof must be exhibited before the clerk of the Superior Court of any county in the manner following : " Then follow special provisions for probate under various circumstances. The meaning of this provision seems to be that registration can be made only upon an order of the clerk of the Superior Court. Trom attorney's letter. " Raleigh, N. C, June 12, 1899. " You have the inferences correct, namely. Code of 1883, § 1275; Laws of 1891, chap. 240. " The courts have held that this statute cannot be avoided by making the contract in the form of a lease or contract of bailment. Clark v. Hill, 117 N. C. 11 ; Barrington v. Skinner, 117 N. C. 47; Manufacturing Co. V. Gray, 121 N. C. 168. " Where such contracts as you refer to are made, even if registered, the courts hold them to be a mort- gage, and if the vendee has made several payments on the property sold by the vendor, they will allow the vendor to sell the article, and after retaining an amount 78 CONDITIONAL SALES AND BAILMENTS. sufficient to cover the balance of his debt, and the ex- penses of sale, he must pay the remainder to the ven- dee." Certificate of acknowledgment. Wherever acknowledgment is required, the following form is prescribed by Code as sufficient : State of I ss ■ County of ) I, , do hereby certify that personally appeared before me this day, and acknowl- edged the due execution of the foregoing instrument. Witness my hand and seal (private or official), this day of , A. D (Name and title.) (Seal.) NORTH ,DAKOTA. 79 NOBTH DAKOTA. CONTBACT HUST BE FILED. By whom executed: Not specified. In what oiHce filed: County Register of Deeds. Within what time: Not specified. How long effective: Three years. How time extended: ReMe within ninety days before expiration. Statute. (Revised Codes 1895, §§ 4732, 4733, 4737.) " § 4732. All reservations of the title to personal property, as security for the purchase money thereof, shall, when the possession of such property is delivered to the vendee, be void as to subsequent creditors with- out notice and purchasers and incumbrancers in good faith and for value, unless such reservation is in writ- ing and filed and indexed the same as a mortgage of personal property. In indexing such instruments the register of deeds shall treat the purchaser as mortgagor and the vendor as mortgagee. " § 4733- -^ mortgage of personal property is void as against creditors of the mortgagor and subsequent purchasers and incumbrancers of the property in good faith for value, unless the original or an authenticated copy thereof is filed by depositing the same in the office of the register of deeds of the county where the prop- erty mortgaged, or any part thereof, is at such time situated." So CONDITIONAL SALES AND BAILMENTS. Section 4737 provides that chattel mortgages are valid for only three years from the date of filing, unless within the preceding ninety days the mortgagee or his assignee, or the agent or attorney of either, files a copy of the mortgage, with a sworn statement of the amount of existing debt, in the office of the register of deeds; and that a renewal must be filed every three years. Affidavit for renewal. State of \ ss • County of j , being duly sworn, says that he is the (agent or attorney of the) vendor named in the an- nexed instrument, and that the amount of existing debt is$ Sworn to before me, this ) .... day of 19 . . f OHIO. 8i OHIO. CONTBAOT MUST BE FILED. By whom executed: Vendee. In what office Hied: See statute. Within what time: Not specified. How long effective: Not specified. How time extended: Not specified. Statute. (Bates' Ann. Stat.) " (4155-2) § I. In all cases where any personal property shall be sold to any person, to be paid for in whole or in part in installments or shall be leased, rented, hired or delivered to another on condition that the same shall belong to the person purchasing, leasing, renting, hiring, or receiving the same wherever the amount paid shall be a certain sum, or the value of such property, the title to the same to remain in the vendor, lessor, renter, hirer, or deliverer of the same, until such sum or the value of such property or any part thereof shall have been paid, such condition, in regard to the title so remaining until such payment, shall be void as to all subsequent purchasers and mort- gagees in good faith, and creditors, unless such condi- tion shall be evidenced by writing signed by the pur- chasers, lessor, renter, hirer or receiver of the same, and also a statement thereon, under oath, made by the person so selling, leasing or delivering any property as herein provided, his agent or attorney of the amount of the claim, or a true copy thereof, with an affidavit 6 8a CONDITIONAL SALES AND BAILMENTS. that the same is a copy, deposited with the clerk of the township where the person signing the instrument re- sides at the time of the execution thereof, if a resident of the state, and if not such resident, then with the clerk of the township in which such property so sold, leased, rented,, hired or delivered is situated at the time of the execution of the instrument ; but when the person exe- cuting the instrument is a resident of a township in which the office of the county recorder is kept, or when he is a non-resident of the state, and the property is within such township, the instrument shall be filed with the county recorder ; and the officer receiving any such instrument shall proceed with the same in all respects as he is required to do by section 4152 of the Revised Statutes of Ohio, and shall receive the same fees as are allowed by law for similar services in other cases. " (4155-3) § 2. Whenever such property is sold or leased, rented, hired or delivered, it shall be unlawful for the vendor, lessor, renter, hirer or deliverer, or his or their agent or servant, to take possession of such property without tendering or refunding to the pur- chaser, lessee, renter or hirer thereof, or any party re- ceiving the same, the sum or sums of money so paid, after deducting therefrom a reasonable compensation for the use of such property, which shall in no case exceed fifty per cent, of the amount so paid, anything in the contract to the contrary notwithstanding, and whether such condition be expressed in such contract or not, unless such property has been broken or actu- ally damaged, and then a reasonable compensation for such breakage or damage shall be allowed." OHIO. 83 From attorney's letter. " Cincinnati, June 12, 1899. " The proper citation is as follows : Revised Stat- utes of Ohio, 4155-2 (Act of May 4, 1885). " This statute has been the subject of a great deal of contention and diversity of opinion in our intermediate courts, but the Supreme Court of our state has recently settled the matter ; but the opinion has not as yet been published. We can say, however, that the statute can- not be avoided by any subterfuge in the form of a lease or bailment." ^ The case above referred to is undoubtedly Speyer & Co. V. Baker, 59 Ohio State Reports, 11. It decides ( I ) that conditional sales made after the passage of the act are governed by it; (2) that the rights of the pur- chaser, under the statute, are unaffected by the execu- tion of a mortgage on the property, at the time of the sale, to secure installments of the purchase price; and (3) that the purchaser who has made one or more pay- ments is entitled to the possession of the property, not- withstanding his failure to make further payment, until the seller refunds or tenders back the amount so paid, less a reasonable compensation for use and damage; also that the sum which the purchaser is entitled to have refunded constitutes the value of his right of pos- session, and should be awarded him as damages when the property is taken in replevin at the suit of. the ven- dor before the amount has been refunded. 84 CONDITIONAL SALES AND BAILMENTS. i SS. Affidavit to be attached to contract. State of County of , being duly sworn, says that he is the (agent, or attorney of the) vendor named in the fore- going instrument ; that the amount of the vendor's claim is $ and that it is just and unpaid. Sworn to before me, this . day of . , this ) 19.. j OKLAHOMA. 85 OKLAHOMA. CONTRACT MtrST BE riLED. By whom executed: Not specified. In what office filed: County Register of Deeds, Within what time: Not specified. How long effective: Three years. How time extended: Refile within thirty days before expiration. Statute. (Laws 1897, chap. 26, art. i.) " § I. That any and all instruments in writing, or promissory notes now in existence or hereafter exe- cuted, evidencing the conditional sale of personal prop- erty, and that retains the title to the same in the vendor until the purchase price is paid in full, shall be void as against innocent purchasers, or the creditors of the vendee, unless the original instrument, or a true copy thereof, shall have been deposited in the office of the register of deeds in and for the county wherein the property shall be kept, and when so deposited, shall be subject to the law applicable to the filing of chattel mortgages; and any conditional, verbal sale of per- sonal property, reserving to the vendor any title in the property sold, shall be void as to creditors and inno- cent purchasers for value." The chattel mortgage law, Statutes 1893, chapter 51, contains the following provisions: 86 CONDITIONAL SALES AND BAILMENTS. "§ 23. A mortgage of personal property must be signed by the mortgagor in the presence of two persons, who must sign the same as witnesses thereto, and no further proof or acknowledgment is required to admit it to be filed." " § 22. A mortgage of personal property ceases to be valid as against creditors of the mortgagor and sub- sequent purchasers or incumbrancers in good faith after the expiration of three years from the filing thereof, unless within thirty days next preceding the expiration of such term, a copy of the mortgage and a statement of the amount of existing debt for which the mortgagee or his assignee claim a lien, sworn to and subscribed by him, his agent or attorney, are filed anew in the office of the register of deeds in the county in which the mortgagor then resides, and in like manner the mortgage and statement of debt must be again filed every three years, or it ceases to be valid as against the parties above mentioned." Affidavit for renewal. Same as in North Dakota, which see. OREGON. 87 OEEGON. BECOBD OR PILING TTNITECESSABT. Trom attorney's letter. " Portland, Oregon, June 15, 1899. " Where the owner of an article of personal property, under an agreement in writing, delivers same to any person to be used by the latter at a stipulated price or hire of so muth per week or month, to be paid period- ically until a certain specified sum shall be paid, at which time. the title to the personal property is to be- come vested in the person paying the money, such an agreement does not constitute a sale. Under such an agreement the title will not pass to the party receiving the property, and a sale of it by him to a bona -fide pur- chaser conveys no title. Singer Mfg. Co. v. Graham, 8 Ore. 17. " When a chattel is delivered to one who has bar- gained for ihe purchase thereof and agreed to pay therefor at a future day under an express contract that no title is to vest in him until payment, the property of the vendor is not divested, and the purchaser takes, at most, only a right by implication to the use of the chattel until default in the stipulated payment. Rosen- dorf et al. v. Baker, 8 Ore. 241. " Under a lease stipulating that the crops raised on the demised premises shall be and remain the prop- erty of the landlord until rent is fully paid, the title to the crops does not vest in the tenant till he has paid the 88 CONDITIONAL SALES AND BAILMENTS. rent, and the effect of such a provision is not to make the instrument a mortgage which must be filed to give it vaUdity against subsequent mortgagees and pur- chasers in good faith. Under such circumstances, a chattel mortgage on the growing crops does not take precedence over the landlord's claim for rent, though the lease be unrecorded. Broders v. Bohannon, 30 Ore. 599 (48 Pac. 692). " Good faith will not protect the purchaser of a chattel from one without title. In such case caveat emptor is the rule. Church v. Melville, 17 Ore. 413. " The validity of such contracts and their assign- ability so as to carry with them the right of property in the assignee together with the right of possession after condition broken whether the default be prior or subse- quent to the assignment is also recognized by our state Supreme Court in Landigan v. Mayer, 32 Ore. 245 (5 1 Pac. 649). " There is no statutory provision in our state re- quiring the filing or recording of conditional sales and leases of this character. It is a settled doctrine, how- ever, in this state that where a bill of sale or other in- strument, no matter what it may be called, is taken simply as security for the payment of money it is a mortgage, and as such, must be filed within five (5) days after the date of its execution and delivery in order to become effectual as a lien against third parties without notice; and in this state an attaching creditor is given by statute the same standing as a bona fide pur- chaser for value without notice." PENNSYLVANIA. ^9 PENNSYLVANIA. CONDITIONAL SALE NOT VALID. BAILMENT ONLY PBOTECTION. From attprney's ktter. " Philadelphia, June 12, 1899. " A contract of conditional sale of personal property- is, under the decisions of the Supreme Court of our state, invalid as to the creditors of the vendee or bona Ude purchasers from him. Where the goods, however, still remain in the possession of the vendee, and there is a default in the conditions of sale, an action of replevin would still lie, and could be successfully maintained against the vendee. The only safe way for a vendee to protect himself is to make the contract one of lease or bailment, and avoid a conditional sale. A chattel mort- gage for the purpose stated by you is not recognized in this state, and is only good between the parties them- selves." The following commentary on the law of Pennsyl- vania is found in the opinion in Ott v. Sweatman, 166 Pa. St. 217, in which the contract was in form one of bailment, and contained the express provision that it was " not a contract of sale, conditional or otherwise ; " yet it was held to be a sale and that the property was subject to execution under a judgment against the vendee : " There are many cases in Pennsylvania in which has 9° CONDITIONAL SALES AND BAILMENTS. been considered the liability of goods to levy and sale by the sheriff, where the claimant has parted with their possession under a contract with the execution defend- ant, by which the latter has or may become the owner, the contract preventing, or attempting to prevent the title passing with the possession. A careful examina- tion of these cases will show that they may be reduced to two classes, one in which goods have been bailed to the defendant, with the right in him to purchase them during the continuance of the bailment or at its termi- nation, and the other, in which the goods have been de- livered to the defendant under a contract of sale, and the seller has sought to retain a lien on them for the price. In the former, the goods are not subject to the levy during the existence of the contract of bailment, nor until the title has actually vested in the bailee; in the latter they are subject to the levy so soon as they reach the possession of the purchaser, though no part of the price has been paid. The reason for the distinc- tion is that, in a bailment, by the change of possession no title to the goods passes, and the necessities of life require that bailments should be allowed and enforced ; but when the possession of goods changes, under a con- tract which is essentially one of sale, the title does pass, though conditionally, and, as to an execution creditor of the buyer, will be held to have passed absolutely, and the seller will not be allowed to enforce the condition as a lien for the price, because a secret lien on personal property is against public policy. The courts in de- termining whether or not the contract was one of bail- PENNSYLVANIA. 9^ ment, or one of sale with an attempt to retain a lien for the price, have not considered what name the parties have given to the contract, but what was its essential character." " Where the contract under which the possession of the goods was obtained has been in writing, or if oral has been clearly defined, the court has determined its effect; and where there has been an actual bailment, though coupled with the right in the bailee to purchase the goods, during the continuance of the bailment, they have been held not liable to an execution against the bailee ; and when there has been a sale, coupled with an attempt upon the part of the seller to retain a lien for the price, the goods in the buyer's possession have been held subject to a levy under an execution against him; and in doubtful cases, the court in construing the con- tract has been governed by the principle that possession of personal property is the great mark of ownership." In Crist v. Klein, 79 Pa. St. 290, cited in the above case, the contract was one of leasing a piano. It pro- vided that $35 should be paid at the beginning of the first quarter ; that the " renting may be terminated at the option of the party of the first part (lessor), at any time if the rent is, not paid as above agreed, and that they may at their option enter said premises and take possession of and remove said piano without process of law." The lessee was to have the right to purchase the piano at $450 in installfnents, the last payable in nine months ; in case of purchase the sums paid for rent to be deducted from the price, the right of the plaintiffs to claim the piano as their property to rema:in in them 92 CONDITIONAL SALES AND BAILMENTS. as if the privilege of purchase had not been added to the agreement. This was held to constitute a contract of bailment and not of sale ; and it was held that the property was not subject to seizure and sale for taxes of the lessee. In Welder v. Roeschman, 13 Pa* Co. Ct. Rep. 94, the contract for the leasing of certain household goods was substantially as follows : " Weider Bros, have bailed and let unto Bessie Lee (naming the articles) for the term of twenty-seven weeks for the rental of $287.60, to be paid in the man- ner following; $25 on the execution of this agreement, and the residue in weekly installments of $10 each, uhtil the aggregate amount as aforesaid is fully paid; in default of payments the said Weider Bros, shall re- possess said goodis. At the expiration (or sooner de- termining) of this term, the said Bessie Lee agrees to surrender the said goods, and it is expressly agreed that neither this lease or bailment shall vest the title or ownership in Bessie Lee, but that the said goods shall remain the exclusive property of Weider Bros. The said Bessie Lee agrees to have the furniture insured for the benefit of Weider Bros., and the latter agree that if Bessie Lee shall perform all the covenants and shall make no default in payments as they become due, they will execute a bill of sale to the said Bessie Lee of the goods in question." Held, that this constituted a bailment and not a conditional sale, and vested no title in the lessee, and that such goods were not subject to execution in favor of a creditor of the lessee. RHODE ISLAND - SOUTH CAROLINA. 93 RHODE ISLAND. FILING OB KECOKD UNITECESSABY Ttom attorney's letter. " Providence, R. I., June 12, 1899. " We have no statute on the subject and it is not nec- essary to record either conditional sales or leases." SOUTH CAROLINA. CONTKACT TBEATEB AS CHATTEL IiIOBTGAaE; TULUST BE BECOBDED. Trom attorney's letter. " Charleston, S. C, June 12, 1899. " You will find in the statutes at large for South Carolina for the year 1898, page 746, a statute on the subject of recording, which makes a chattel mortgage which is recorded after the forty days permitted by the statute not valid against creditors of the mortgagor whose credits were given between the date of the mort- gage and the date of actual record. " The effect of this legislation is supposed to have brought to an end the existence of secret or ' pocket ' mortgages which were brought out for record just be- fore the assignment for creditors or before the judg- ment was entered up. " We do not think that the statute can be avoided by 94 CONDITIONAL SALES AND BAILMENTS. ' the form in which the chattel mortgage is drawn, for you will see in Perkin v. Bank, 43 S. C. 44, and the cases there cited, that the courts have quite consistently held that contracts similar to those under considera- tion, in the form of a lease or contract of bailment, are chattel mortgages and to be considered accordingly." Statute. The following is a portion of the statute above re- ferred to : " All .... mortgages or instruments in writing in the nature of a mortgage of any property, real or personal ; .... which shall be delivered or executed on and after the first day of March, 1898, shall be valid so as to affect from the time of such delivery or execution the rights of subsequent creditors (whether lien creditors or simple contract creditors) or purchasers for valuable consideration without notice only when recorded within forty days from the time of such delivery or execution in the office of the register of mesne conveyances (or clerk of court) ... .in the case of personal property, of the county where the owner of such personal property resides, if he resides within the state, or, if he resides without the state, of the county where such personal property is situated at the time of the delivery or exe- cution of such deeds or instruments. Provided, never- theless, that recording and record of the above men- tioned deeds or instruments of writing subsequent to the expiration of said forty days shall from the date of such record operate as notice to all who may subse- quently thereto become creditors or purchasers." SOUTH CAROLINA-SOUTH DAKOTA. 95 Revised Statutes, 1893, § 818, provides that before any deed or other instrument in writing can be re- corded, the execution must be proved by the affidavit of a subscribing witness. SOUTH DAKOTA. CONTRACT MUST BE FILED. By whom executed: Not specified. In what ofUce Med: County Register of Deeds. Within what time: Not specified, How long effective: Not specified. How time extended: Not specified. Statute. (Annotated Stats. 1899, vol. 2, § 4447.) " All sales of personal property, where the possession is delivered to the vendee on condition that the title shall remain in the vendor until the purchase money is paid, shall vest such title in the vendee as to third per- sons without notice of such conditions, unless such con- tract is in writing and filed with the register of deeds of the county where the vendee resides." 96 CONDITIONAL SALES AND BAILMENTS. TENNESSEE. MT7ST BE IN WBITIITG, ■HrEl'TSER BECOBD KOB YLLINOr PBKSCBIBED. Statute. (Acts 1899, chap. 15.) " Hereafter in all conditional sales of personal prop- erty, wherein the title to the property is retained by the vendor, as a security for the payment of purchase money, such retention of title shall be illegal and in- valid, unless evidenced by a written contract or memo- randum, executed at the time of the sale." TEXAS. CONTBACT MUST BE FILED. By whom executed: Not sped/led. In what office filed: County Clerk. Within what time: Forthwith. How long effective: Not specified. How time extended: Not specified. Statute. (Sayles' Civr Stats, arts. 3190a, 3190b, i.) " 3190a. All reservations 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 cred- itors and bona fide purchasers, unless such reservations TEXAS. 97 be in writing and registered as required of chattel mort- gages; provided, that nothing in this act shall be con- strued to contravene the landlord and tenants acts. (Act of March 31, 1885 ; 19 Leg. p. 76.) " 3190b, I. Every chattel mortgage, deed of trust or other instrument of writing intended to operate as a mortgage of or lien upon personal property which shall not be accompanied by an immediate delivery, and be followed by an actual and continued change of posses- sion of the property mortgaged or pledged by such in- strument, shall be absolutely void as against the credit- ors of the mortgagor or person making same, and as against subsequent purchasers and mortgagees or lien holders in good faith, unless such instrument or a true copy thereof shall be forthwith deposited with, and filed in, the office of the county clerk of the county where the property shall be situated, or if the mortgagor or person making the same be a resident of this state, then of the county in which he shall at the time be a resi- dent." 98 CONDITIONAL SALES AND BAILMENTS. UTAH. FILING OB BECOBS tTNNECESSABT. Prom attorney's letter. " Salt Lake City, Utah, June 13, 1899. " Conditional sales, wherein the ownership of the chattel is to remain in the vendor until paid for, are valid in Utah as against persons claiming through the vendee. See, Shoshonets v. Campbell, 24 Pac> Rep. 672. No statute altering the condition of the law in this regard has been passed since that case was de- cided." VERMONT. MBraOEANDTJM: MUST BE BECOBBED. By whom executed: Vendee. Ill what oiRce recorded: Tozvn Clerk. Within what time: Thirty days after prop- erty delivered. How long effective: Not specified. How time extended: Not specified. Statute. (Vermont Statutes, § 2290.) " § 2290. No lien reserved on personal property sold conditionally and passing into the hands of the con- ditional purchaser shall be valid against attaching- VERMONT. 99 creditors or subsequent purchasers without notice, un- less the vendor of such property takes a written memo- randum, signed by the purchaser, witnessing such lien, and the sum due thereon, and causes it to be recorded in the office of the clerk of the town where the purchaser of such property resides, if he resides in the state, other- wise in the office of the clerk of the town where the vendor resides, within thirty days after such property is delivered." Memorandum of lieu. Be it known that I, , of , in the county of , and state of Vermont, have this day purchased of , in the county of , and state of , the following described articles, to-wit : [describe articles] , on which there is now due to said and unpaid, the sum of and the said has a lien upon said property for that amount, by the provisions of Vermont Statutes, § 2290, it being understood that said articles are to remain the property of the said the vendor thereof, until said sum of is fully paid by me. Witness my hand and seal, this. . .day of . . . ., 19. . (^-s.) Certificate of acknowledgment. No form of certificate of acknowledgment pre- scribed. lOO CONDITIONAL SALES AND BAILMENTS. The following conforms to statutes 1894, § 2213. State OF j. ^^ . County of ) At oil this .... day of , i . . . . , personally appeared , and acknowledged this instrument by him sealed and subscribed, to be his free act and deed. Before me (name of officer). (Official title.) VIRGINIA. "I VIEGINIA. CONTRAOT MUST BE TILED. By whom executed: Both parties. In what office filed: County Clerk; Corpora- tion Clerk in Rich- Within what time: Not specified. How long effective: Not specified. How time extended: Not specified. Statute. (Acts of Assembly, 1893-4, chap. 362.) " Be it enacted by the General Assembly of Virginia that § 2462 of the Code of Virginia in regard to reser- vation of title to goods and chattels sold upon condi- tion, as amended by an act approved February 28, 1890, be amended and re-enacted so as to read as fol- lows : " § 2462. Every sale or contract for the sale of goods or chattels, wherein the title is reserved until the same be paid for in whole or in part, or the transfer of title is made to depend on any condition, and possession be delivered to the vendee, shall, in respect to such reser- vation and condition, be void as to creditors of and pur- chasers for value without notice from such vendee until such sale or contract be in writing, signed by both the vendor and vendee, in which the said reservation or condition is expressed, and until and except from the time that a memorandum of said writing, setting forth loz CONDITIONAL SALES AND BAILMENTS. the date thereof, the amount due thereon and a brief description of said goods or chattels be docketed in the clerk's oflfice of the county or Corporation Court of the county or corporation in which sai^ goods or chattels may be, or in the clerk's office of the Chancery Court of the city of Richmond, if said goods or chattels be within the corporate limits of said city ; and it shall be the duty of such clerk to docket and to index the same from the original contract in the name of the vendor and vendee, together with the date of such docketing, in a book to be kept by him for that purpose, and to endorse on such contract the words ' Memorandum docketed,' with his signature as clerk affixed thereto, for which services the clerk may charge a fee not to exceed twenty-five cents ; but no tax shall be charged thereon, and the docket- ing and indexing of such memorandum of said contract as is herein provided for shall have the same effect as to creditors of and purchasers for value without notice from the vendee, as if said contract were recorded ac- cording to the provisions of chapter 109 of the Code of Virginia of 1887, or if said goods or chattels consist of locomotives, cars, or other rolling stock, equipments or personal property of any description to be used in or about the operation of any railroad, until and except from the time the said writing is duly admitted to record in the clerk's office of the county or Corporation Court of the county or corporation wherein the princi- pal office in this state of the company operating the rail- road is located, or in the clerk's office of the Chancery Court of the city of Richmond, if said principal office is within the corporate limits of the said city, and a copy VIRGINIA. i°3 of said writing be filed in the office of the board of pub- lic works, and each locomotive, car or other piece of rolling stock be plainly and permanently marked with the name of the vendor on both sides thereof, followed by the word ' owner.' " Except said goods and chattels consist of locomo- tives, cars or other rolling stock, equipments or per- sonal property of any description to be used in or about the operation of any railroad, no acknowledgment or other form of proof shall be requisite to authorize the clerk to docket said sale or contract, and all sales or contracts for the' sale of goods or chattels other than locomotives, cars and railroad equipments aforesaid, heretofore docketed without acknowledgment or other proof, shall have the same force and effect as if the same had been duly acknowledged or approved. " 2. This act shall be in force from its passage." Notice of reservation. For notice of reservation of title the West Virginia form seems to be appropriate. Certificate of acknowledgment. The following form is prescribed by code 1887, § 2501. No contracts of conditional sale need be ac- knowledged, except of railroad equipments. S™0F K^.^^. County of ) I (name and title), for the county (or, corporation) aforesaid in the state (or, territory, or district) of do certify that whose name 104 CONDITIONAL SALES AND BAILMENTS. is signed to the writing above, bearing date on the .... day of , I has acknowledged the same be- fore me, in my county (or corporation) aforesaid. Given under my hand, this .... day of , I (Name and title.) (Seal.) WASHINGTON. lOS WASHINGTON. COWTBACT MUST BE BECOBDED. By whom executed: Both parties. In what oMce recorded: County Auditor. Within what time: Ten days after taking possession. How long effective: Not specified. How time extended: Not specified. Statute. (Laws 1893, chap. 106.) " An act in relation to conditional sales and leases of personal property. "Be it enacted by the legislature of the state of Washington:' " § I. That all conditional sales of personal property or leases thereof containing a conditional right to pur- chase where the property is placed in the possession of the vendee shall be absolute as to all creditors, or purchasers in good faith, unless within ten days of the taking of possession by the vendee a memorandum of such sale, stating its terms and conditions and signed by the vendor and vendee, shall be filed in the auditor's office of the county wherein, at the date of the vendee's taking possession of the property, the vendee resides. " § 2. It shall be the duty of the county auditor of the county wherein any such memorandum is presented to him for that purpose, to mark thereon the time of its reception, and he shall index the same in the general io6 CONDITIONAL SALES AND BAILMENTS. index of instruments in his office by stating the name of the vendor and vendee, and the words ' conditional sale ' and the volume and page in which it is recorded. And he shall cause the same to be recorded in a book to be kept by him for that purpose and styled ' Con- ditional sales. Volume , and the auditor shall charge the same rates for the recording of such instru- ments as are allowed for the recording of deeds of real property, and shall allow a cancellation or satisfaction thereof in the same manner as mortgages of real prop- erty are cancelled or satisfied." > Certificate of acknowledgment. The following form of certificate of acknowledg- ment .is prescribed as sufficient by Ballinger's Codes, § 4533- State of ,_ ^^ I County of I (name and title), do hereby certify, that on this .... day of , I . . . , personally appeared before me , to me known to be the individual de- scribed in and who executed the within instrument, and acknowledged that he signed and sealed the same as his free and voluntary act and deed, for the uses and pur- poses therein mentioned. Given under my hand and official seal, this .... day of , A.D., one thousand (Name of officer.) (Seal.) WEST VIRGINIA. lo? WEST VIRGINIA. NOTICE OF RESERVATION MUST BE RECORDED. By whom executed: Vendor. In what ofUce recorded: County Clerk. Within what time: Not specified. How long effective: Not specified. How time extended: Not specified. Statute. (Code of West Virginia, 1891, chap. 74, §3.) " § 3- Where any loan of goods or chattels is pre- tended to have been made to any person with whom, or those claiming under him, possession shall have re- mained five years without demand made and pursued by due process of law on the part of the pretended lender, or where any reservation or limitation is pre- tended 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 as aforesaid, the absolute property shall be taken to be with the possession, and such loan, reservation or limitation, void as to creditors of, and purchasers from, the person so rema'ining in possession, unless such loan, reservation or limitation, be declared by will, or other writing, duly recorded. And if any sale be made of goods and chattels reserving the title until the same is paid for, or otherwise, and possession be delivered to the buyer, such reservation shall be void as to creditors of, and purchasers without notice from. io8 CONDITIONAL SALES AND BAILMENTS. such buyer, unless a notice of such reservation be re- corded in the office of the clerk of the county court of ' the county where the property is, or in case said goods and chattels consist of engines, cars or other rolling stock or equipment to be used in or about the operation of any railroad, unless such a notice be recorded in the office of the secretary of state, who in such case shall record the same in a book to be kept for the purpose, and be entitled to a fee of five dollars for so doing." From attorney's letter. " Wheeling, W. Va., June 12, 1899. " The statute cannot be avoided by making the con- tract in the form of a lease or contract of bailment. " I enclose you copies of the blanks usually employed here for making the contracts and recording notice of conditional sale." The following form of notice of reservation of title is copied from a printed blank in use in West Virginia. It appears to be applicable in Virginia also. Notice of reservation of title. have on the .... day of in the year 189 .. , sold to residing at No in the and state of West Virginia (describe articles), the amount remaining unpaid on which amounts to dollars', which is to be paid in monthly installments of dollars each, payable on the .... day of every month for months, beginning with the ... . day of 189 .. , in which sale the said reserved the title to WEST VIRGINIA. 109 the said goods and chattels above described until the purchase-money should have been paid in full, and also reserved the right, on default of payment of' any in- stallment of the purchase-money, or any sale or attempt to sell by the said or removal or attempt at removal of the said goods and chattels to resume possession thereof, which reservations are more fully set forth in a Memorandum of Agreement signed by the said and dated on the said .... day of , in the year 19. ., to which' reference is here made. Notice is hereby given of said reservations. 1 lo CONDITIONAL SALES AND BAILMENTS. WISCONSIN. CONTBACT nUST BE FILED. By whom executed: Both parties. In what office filed: Town, City or Village Clerk. Within what time: Not specified. How long effective: Not specified. How time extended: Not specified. Statute. (Wis. Stats, vol. i, §§ 2317) 2319b, 2^14.) " § 2317. Conditional, sales. — No contract for the sale of personal property, by the terms of which the title is to remain in the vendor and the possession thereof in the vendee until the purchase price is paid or other \;onditions of sale are complied with, shall be valid as against any other person than the parties thereto and those having notice thereof unless such contract shall be in writing, subscribed by the parties, and the same or a copy thereof shall be filed in the office of the clerk of the town, city or village where the vendee resides, or if he shall not be a resident of the state then in the office of the clerk of the town, city or village where the property may be at the time of making such contract, and such clerk shall file, keep and index the same in like manner as mortgages of personal property and receive a like compensation therefor; but the effect of such filing shall not extend for more than one year after the time fixed for WISCONSIN. I" payment of the contract price or for the performance of the other conditions of such sale." "§ 2319. Contracts for household goods regulated. — All contracts for the sale of furniture or other house- hold effects made on condition that the title thereto shall not pass until the price is paid in full, whether in the form of a lease or otherwise, shall be in writing and a copy thereof shall be furnished the vendee by the ven- dor at the time of sale ; and all payments made by or in behalf of the vendee and all charges whether in the nature of interest or otherwise, as they shall accrue, shall be endorsed by the vendor upon such copy if the vendee so requests. If the vendor fails to comply with any of these provisions through negligence, his rights under such contract shall be suspended while such de- fault continues, , or if he refuses or wilfully or fraud- ulently fails to comply therewith he shall be deemed to have waived the conditions of such sale. The ven- dor, upon taking possession of such furniture or ef- fects for non-compliance with the terms of such con- tract, shall furnish the vendee or other person in charge thereof an itemized statement of the account, showing the amount due thereon, and the vendee may, at any time within fifteen days after such taking, redeem the property so taken by paying to the vendor, the full amount of the price then unpaid, together with interest and all lawful charges and expenses. Said fifteen days shall not begin to run until such statement is furnished, provided the vendee or other person in charge can be found by the vendor by the exercise of reasonable care and diligence." 112 CONDITIONAL SALES AND BAILMENTS. " § 2314. Filing chattel mortgages. Every mort- gage of personal property, or a copy thereof, may be filed in the office of the clerk of the town, city or vil- lage where the mortgagor resides, or in case he is a non-resident of the state, then in the office of the clerk of the town, city or village where the property mort- gaged may be at the time of the execution of such mort- gage; such clerk shall endorse on such mortgage or copy the time of receiving the same and keep the same in his office for the inspection of all persoils ; such clerk shall also make the entries as required in subdivision 10 in § 832. Mortgages so filed shall be as valid and bind- ing upon all persons as if the property thereby mort- gaged had been, immediately upon the execution of such mortgage, delivered to, and the possession thereof retained by, the mortgagee." WYOMING. "3 WYOMING. COITTIIACT KUST BE FILES. By whom executed: Vendee. In what ofUce Med: County Clerk. Within what time: Not specified. How long effective: One year. How time extended: Reflle within thirty days before expiration. Statute: (Laws 1895, chap. 40.) CONDITIONAL SALES OR TRANSFERS OF PERSONAL I PROPERTY. " An act requiring all conditional sales or transfers of personal property to be in writing, and that such writing be made a matter of record. "Be it enacted by the legislature of the state of Wyoming: " § I. That no sale, contract or lease wherein the transfer or title of ownership of personal property is made to depend upon any condition, shall be valid against any purchaser or judgment creditor of the ven- dee or lessee in possession, without notice, unless the same be in writing, signed by the vendee or lessee and the original or a copy thereof filed in the office of the county clerk of the county wherein the property is. Said instrument so filed shall have attached thereto an 8 "4 CONDITIONAL SALES AND BAILMENTS affidavit of such vendor or lessor, or his agent or attor- ney, which shall set forth the names of the vendor and vendee, or lessor and lessee with a description of the property transferred and the full and true interest of the vendor or lessor therein. All such sales or transfers shall cease to be valid against purchasers in good faith, or judgment or attaching creditors without notice at the expiration of one year from the date of such sale unless the vendor or lessor shall within thirty days prior to the one year from the date of such sale or transfer, file a similar affidavit to the one above provided for, in the office of said clerk, and the said vendor or lessor may preserve the validity of his said sale or transfer of such personal property by an annual re-filing in the manner as aforesaid, of such copy. " § 2. The county clerk, on presentation, shall file such instrument in his office, and index the same in the same manner as chattel mortgages are required to be indexed, and he shall collect therefor a fee of twenty- five cents. " § 3. This act shall take effect and be in force from and after April i, 1895." Form of affidavit to attach to contract. Same as in Nebraska, which see. Forms. Several general forms are given, some of contracts of conditional sale, others in the form of leases or con- tracts of bailment. It seems, from the preceding pages, that the latter have no points of advantage over the former, except in the state of Pennsylvania, where a contract of conditional sale affords no protection against creditors and bona Ude purchasers, while a con- tract of bailment is effectual though it contains a privi- lege to the lessee to take title after -payment of a certain amount of rent. In most jurisdictions, a contract with such an option is equivalent to a conditional sale. Form No. i was prepared with special reference to the New York statute, but it is believed to be appro- priate to nearly every jurisdiction where any such con- tract is valid and effectual; though in some places it need be executed by the vendee only. In this connec- tion it may be suggested that unless a statute specifi- cally names the vendee as the only party to sign the contract, it is safer to have it executed by both parties. A form substantially like No. 5 has been used for years in Pennsylvania, and approved by several attor- neys of that state as legal and effectual there. "5 n6 CONDITIONAL SALES AND. BAILMENTS. , Form No. 2 is used in West Virginia. It appears to be adapted to general use in most jurisdictions where such contracts are vaHd. Forms Nos. 3, 4, 6, and 7, are taken from precedents in actual service. Care must be observed in their use; since in some jurisdictions both parties must exe- cute the contract ; in some, certificates of acknowledg- ment must be added ; and the validity of certain pro- visions must be determined by reference to local laws. Special forms adapted to particular localities, appear in the earlier part of this volume. ■So. 1. CONTRACT 01' CONDITIONAL SALE. (This form was especially prepared for use by a manufacturing corporation. It can be readily adapted for use by individuals. It is believed to be applicable in most jurisdictions where such contracts are valid. The portion in brackets, however, beginning with the words " In such case," is probably ineffectual under the present law in Kentucky, Maine, Missouri, New York, Ohio, Oregon and Soiith Carolina. The certifi- cates of acknowledgment are those used in New York. They are believed to be good in every jurisdiction where no forms are prescribed.) This agreement, made this .... day of , 19. ., between the .company of , FORMS. "7 of the first part, and , of , of the second part, Witnesseth: ^ The party of the first part this day delivers to the part. . . . pf the second part (here insert description of articles), for which the part. ... of the second part agree . . to pay, besides the freight charges, the sum of $...., as follows : (Insert terms and manner of pay- ment. ) It is agreed that the party of the first part shall not relinquish its title to said property, but shall remain the sole owner thereof until the said purchase price shall have been fully paid, and if notes are given, until all such notes and all renewals thereof shall have been paid. In the event of failure of the part .... of the second part to pay any of said installments (or notes or re- newals thereof) when the same shall become due, or to comply in any respect with this agreement, then all said installments or notes remaining unpaid shall, at the option of the party of the first part, immediately become due, in which case the said articles shall at once become the property of the part .... of the second part, who shall be immediately liable for the unpaid balance of said purchase price ; or, the party of the first part may, without previous notice or demand, either with or without legal process, enter any premises where said articles, may he, and take possession thereof and remove said articles ; and the part .... of the second part hereby waive . . any claim or right of action for trespass or damages by reason thereof. [In such case, all payments theretofore made by the part. . . .of the "8 CONDITIONAL SALES AND BAILMENTS. second part under this contract shall be considered as having been made for the use of said articles during the time the same shall have remained in the possession of the part. . . .of the second part. J The part .... of the second part agree . . to keep said articles insured against fire in an amount not less than $ .... at ... . own expense, but in the name and for the benefit of said party of the first part. Said articles are delivered for use at in the the of , state of , and are not to be removed from said place until the purchase price is paid in full, without the written consent of the party of the first part. The part .... of the second part agree . . to promptly pay the rental of the premises where the said articles are or may be located. It is expressly understood and agreed that this in- strument evidences the whole contract under which said property is delivered and received. In witness whereof, the said party of the first part has hereunto caused its corporate seal to be affixed, and these presents to be subscribed by its . . , and the said part .... of the second part ha . . hereunto set ... . hand and seal, the day and year first above written. (L.S.) , (i-s.) State of \ ss • County of f On the. . . .day of , in the year , before me personally came , to me known,, who. FORMS. "9 being by me duly sworn, did depose and say that he resided in the of ; that he is the of , the corporation described in and which executed the above instrument ; that he knew the seal of said corporation; that the seal affixed to said instrument was such corporate seal ; that it was so affixed by order of the board of directors of said cor- poration, and that he signed his name thereto by like order. , State of. ) ^^ . County of ) On this. . . .day of , 19. ., before nie, the subscriber, personally appeared , to me known to be the same person described in and who exe- cuted the above instrument, and he duly acknowledged that he executed the same. No. 2. CONTBACT OF CONDITIOITAL SALH. (From printed blank used in West Virginia. Believed to be suitable for general use.) STATEMENT. Cash value of goods and chattels this day sold $ ... .1 Cash payment this day . . . $ . . . . .... payments of $ ... . each . . .... Final payment of $ .... Total, $ • 1*0 CONDITIONAL SALES AND BAILMENTS. Memorandum of Agreement made this .... day of in the year 19 .... , between of and state of West Virginia, parties of the first part, and now residing at No . . street, in and state of West Vir- ginia, party of the second part. WITNESSETH, that the said first parties have this day sold unto the said party of the second part [describe articles] for ... . dollars, of which .... dollars has been paid in cash, and of which the residue, amounting to the sum of ... . dollars is to be paid at the office of the first parties, No aforesaid, in monthly payments of ... . dollars each, beginning on the day of in the year 19. ., and payable on the day of every succeeding month until tlje whole shall have been paid. The said second party acknowledges the receipt of the goods and chattels hereinbefore described in good order and agrees to use the same with care and keep them in like good order at his said residence, and not elsewhere, and agrees to pay to the said first parties, the said installments of purchase-money in the manner hereinbefore designated, without notice or demand, and until all of the said payments shall have been made, and to keep the said goods and chattels insured for the bene- fit of the said first parties, in an amount not less than two-thirds of their value ; and the second party further agrees that the said goods and chattels shall not, with- out the written consent of the first parties, be removed from the said present residence of the second party un- til all of the said payments shall have been made. FORMS. 121 The first parties, however, reserve the title to the said goods and chattels until the same shall have been paid for according to the terms aforesaid. And if the sec- ond party shall make default in any of the payments to be made by him as aforesaid, or if he shall, before all of the said payments shall have been made, sell or at- tempt to sell the said goods and chattels or any portion thereof, or remove or attempt to remove the same from his said residence, the first parties may, at their election, at any time thereafter rescind the said sale to him, and by legal process or otherwise, resume possession of the said goods and chattels, having and continuing to have the absolute and unconditional title to the same, but giving the second party credit for such part of the pur- chase-money as he may have paid, less the charges to be made against the same as hereinafter provided. Should the first parties, upon any such default, or upon the said sale or removal by the second party, or any attempt at either, rescind the 'said sale to the second party and resume possession as aforesaid, the second party agrees to pay for the use of the said goods and chattels the sum of ... . dollars for every month during which the second party shall have had possession of the same, that being the agreed rental value, and also to pay to the first parties the amount of any and all dam- age which may have been suffered by said goods and chattels, or either, while in the second party's posses- sion, the amount of which rent and damage shall be charged against the purchase-money which the second party shall have paid, and taken out of such purchase- money should the same be sufficient, and any deficiency 122 CONDITIONAL SALES AND BAILMENTS. therein shall be paid by the second party in money at once updn such resumption of possession and without demand or notice. The receipt by the first parties of any portion of the said purchase-money after any de- fault or any breach of the provisions hereof shall not be construed as a waiver of the default with regard to any other portion of the money remaining unpaid, or a waiver of any other breach of the provisions hereojf, nor shall any waiver of the default as to one install- ment of the purchase-money waive the right to rescind the sale to the second party on account of a default in the payment of any installment subsequently falling due. Should the amount which has been paid by the second party as purchase-money at the time of such re- sumption of possession exceed the amount of said rent and damage, such excess shall be paid in money by the first parties to the second party. The said right to rescind the sale to the second party, and to resume pos- session of the said goods and chattels, is to be optional with the first parties and nothing herein shall be con- strued as preventing the first parties, should they elect so to do, from collecting and recovering from the sec- ond party the full amount of the said purchase-money, as of after the installments thereof shall have fallen due as herein provided. In Witness Whereof, the said parties have here- unto set their hands and seals this .... day of in the year ig. . . . (Seal.) (Seal.) FORMS. "3 No. 3. OONTBACT OF COXTDIXIOIirAL SALE. 19- • To Please ship as soon as convenient, as per directions given below [describe article or articles]. For which, delivered, I will pay you the sum of $ . . . . [State terms and manner of payment.] It is agreed that you shall not relinquish your title to said but shall remain the sole owner thereof, until the full purchase price above stated is paid to you in money; and when notes are given, until all the notes are actually paid in full. In the event of failure to pay any of said installments or notes when the same shall become due, then all of said installments or notes remaining unpaid shall become due and payable immediately; or should you deem yourself unsafe or at any risk, then you may, at your option, remove said without legal process, and all claims for dam- ages from such removal are hereby waived. The said not to be removed from my place of business until the purchase price shall be paid in full, without your written consent. This order is given subject to your approval, and in consideration of above price. It is expressly under- stood that there are no conditions whatever not stated in this contract, and the undersigned agrees to accept IZ4 CONDITIONAL SALES AND BAILMENTS. and pay for said in accordance with this con- tract. Full shipping directions here. Signature -. City or town State : No. 4. CONTBACT OF COITDITIOITAI. SALE OF BOOKS. Agents are not allowed to make collections except in form of check, payable to the order of " Company." To Cornpany, N. Y. 19- • Please deliver to me, C. O.D., carriage paid, the first .... volumes of the , in binding, for which I agree to pay $ . . . . as follows : dollars ($....) cash upon delivery, and the balance to be evi- denced by my notes for $ . . . . each falling due monthly, from the date of this contract. I agree to take the subsequent volumes of said work as issued and to pay therefor .... dollars ($....) per volume upon de- livery. It is expressly understood that the right of property in said books shall remain in Company until FORMS. 125 the same are wholly paid for ; and in case of my failure to meet any one of said notes at maturity, all of said notes remaining unpaid shall immediately become due and payable, and the said Company may take or cause to be taken, with or without legal process, all books unpaid for from my possession or that of any person to whom I may have delivered the same. The publishers guarantee to complete the m not to exceed. . . .volumes, exclusive of index, or to furnish free any volumes in excess of that number re- quired to complete the work. No representations or guarantees have been made by the salesman on behalf of Company which are not herein expressed. This order is subject to the approval of Company. I acknowledge the receipt of a duplicate of this order. Signed Address to References .1 Wo. 5. COWTBACT OF BAILMENT, OB LEASE. (Used in Pennsylvania/; believed to be good generally.) This Agreement^ made this .... day of between , of , of the first part, and , of , of the second part. 126 CONDITIONAL SALES AND BAILMENTS. WITNESSETH, The party of the first part has leased to the part, .of the second part [describe articles] all in. good order, and valued at $ ... . for the term of from this date; and the part. . . .of the second part agree . . to pay, during said term, the sum of $ .... as rent therefor, as follows: [State manner of payment.] If default shall be made in any of said payments, or in the payment of any of said notes or renewals thereof when the same shall become due, or to comply in any respect with this agreement, then and in that case the part.... of the second part agree. .. .to return said articles to said party of the first part, and that the party of the first part may, without previous notice or de- mand, either with or without legal process, enter any premises where said articles may be, and take posses- sion of and remove said articles, and the party of the second part hereby waives any claim or right of action for trespass or damages by reason thereof. The part . . of the Second part further agree .... that at the expira- tion or sooner determining of said term will quit and surrender said property in as good condition as reasonable 'use will permit. It is further agreed, that if the said part-.,. . .of the second part shall make no default in the pa)mient of the aforesaid rent, .... may at the end of said term, or sooner at option, purchase the said articles, paying the above-named valuation therefor, and the party of the first part will execute and deliver to the part.". . .of the second part a bill of sale thereof; in which case the rent theretofore paid shall be deducted FORMS: 1*7 from the purchase price. [*It is further agreed that the party of the second part shall acquire no title to said property until its value shall have been paid in full and as agreed;] also that the said articles shall be and remain at and shall not be removed there- from during the term of this lease, without the written consent of the party of the first part. The part .... of the second part agree .... to keep 1 said articles insured against fire in an amount not less than $...., at own expense, but in the name and for the benefit of the party of the first part. The part .... of the second part agree . . to promptly pay the rental of the premises where the said articles are or may be located. It is expressly understood and agreed that this in- strument evidences the whole contract under which said property is received by the part .... of the second part. In Witness Whereof, the said parties have here- unto set their hands and seals [or, party of the first part has hereunto caused its corporate seal to be affixed, . and these presents to be subscribed by its ; and the said part .... of the second part ha ... . here- unto set hand, .and seal], the day and year first above written. (L.S.) (L-S.) [Add certificates of acknowledgement, if required.] * In Summerson v. Hicks, 134 Pa. State Reports, language similar to this was held to indicate a conditional sale rather than a lease, and so the invalidity of the instrtiraent in that state, as against creditors of the lessee or vendee. 128 CONDITIONAL SALES AND BAILMENTS. TSlo. 6. COITTBACT OF BAILMEITT. The undersigned, , of , in the county of and state of , hereby acknowledges that he has received and hired of of the articles described in the sched- ule below. For the use of said articles, and as rent of the same, the subscriber has this day paid to the said the sum of ... . dollars, and promises further to pay the said , or his legal representatives, the sum of . . . .dollars, in the following manner: [State terms and manner of payment] until such time as the sum thereof to be paid by the subscriber hereto shall amount to the sum of . . . .dollars, at which time said rent shall cease, and said goods shall become the sub- scriber's absolute property. But in case of failure to pay said rent as aforesaid, the said may, without liability, either in trespass or tort, and with- out liability to refund any of the sums received by him as rent, as aforesaid, enter any place where said goods may be, and take possession and remove said articles therefrom. And the said subscriber further agrees that so long as the said rent shall be payable as afore- said, he will not injure, mortgage, sell, or relet said goods, or remove the same from his place of business at and that in case of failure to pay said FORMS. "9 rent as aforesaid, he will on demand return said arti- cles to the said or his legal representatives. Th< title to the goods in the schedule hereto is and shall remain in said until full payment is made to him, and any notes or drafts given are not and shall not be considered as payments, until they are paid, and all part payments are to be forfeited by the non- payment of the balance at the time stated in this agree- ment. And the said subscriber promises to pay the said sum of money as shown in this agreement to the said , and to keep the property sufficiently insured for the benefit of the said Witness my hand, this .... day of , 19 . . Signature SCHEDULE. (Here insert schedule of articles.) Uo. 7. CONTRACT or BAILMENT. Know all men by these presents, that of , in the county of and state of , have received and hired of the Company, a corporation duly established under the laws of the Commonwealth of Massachusetts, and having its usual place of business in in the county of , the following described articles : .... 9 n h J 13° CONDITIONAL SALES AND BAILMENTS. That the said articles are now in store No street, in , and are leased solely for use in said place, and not elsewhere, and are not to be re- moved therefrom without the written consent of the lessor, and that the title to said property is in the Company. For the use of the above-mentioned articles, and as a rent for the same, I hereby agree that the amount to be paid in all is $ and the formerly in use in above-mentioned store, and I have this day paid to the said Company the sum of $ . . . . and promise further to pay to the said Com- pany, its successors and assigns, the sum of $ , according to the terms of certain notes this day given by to said company, described as follows : [description] until such times as the sums so paid and to be paid by shall amount to the sum of $ .... at which time the said rent shall cease, and the said articles become absolute property. And .... agree to keep said goods insured for $...., pay- able to the Company, as its interest may appear. And .... further agree so long as said rent shall be payable as aforesaid, not to injure, sell, mort- gage, or relet the said articles, or renfove the same from the above-mentioned store, and, in case of failure to pay the said rent, to return on demand the said articles to the said Company, or its successors or assigns. But in case of any breach or violation of any of the terms or conditions of this lease or the failure to pay said rent as aforesaid, the said Com- FORMS. 131 pany may, without being deemed guilty of any trespass or tort, and without thereby rendering itself liable to refund any sums received by it as rent as aforesaid, enter any house, store or place where said articles may be and take possession of and remove the said articles therefrom. Witness hand and seal, this .... day of ... . A.D. 19.. Signed and sealed in presence of , . ^ WAIVES OP RIGHT TO DISTBAIN. (Distress for rent is still legal in the states of Ala- bama, Florida, Illinois, Indiana, Kentucky, Maiyland, New Jersey, Pennsylvania, South Carolina and Vir- ginia. It is an incident of distress for non-payment of rent that any property found on the premises may be taken, irrespective of its ownership. It may therefore be desirable to obtain waiver of the right to distrain from landlords in the above-named states. The following form is taken from a precedent in use:) Tonn of waiver. In consideration of the delivery of the within de- scribed personal property as above agreed, I hereby 132 CONDITIONAL SALES AND BAILMENTS. waive all right to distrain upon the same, during such period as may hold the title thereof, |Or any lien thereon. Dated 19 Landlord. Index of Forms. Acknowledgment, certificate of, page Alabama 5 Arizona 7 Colorado, chattel mortgage i8 Connecticut 20 Florida 24 Georgia 26 Illinois 28 Indiana 32 Iowa, individual 34 corporation 34 Maine 41 Maryland 45 Missouri 54 New Jersey, corporation 66 New York, individual 73 corporation 73 North Carolina 78 Vermont 100 Virginia 103 Washington 106 Affidavit, to attach to contract or memorandum, Nebraska 59 New Hampshire 63 133 134 INDEX OF FORMS. Affidavit, to attach to contract or memorandum, page Ohio 84 Wyoming 114 Affidavit, for re-filing, see " Refiling." Bailment, contract of, see " Lease." Chattel mortgage, Maryland 44 Conditional sale, contract of 116, 119, 123, 124 Distress for rent, waiver of .' 131 Lease, or contract of bailment 125, 128, 129 Memorandum of lien, New Hampshire 62 Vermont 99 Notice of reservation of title, Virginia 103 West Virginia 108 Refiling, affidavit for, Kansas 37 North Dakota 79 Oklahoma 86 Refiling, statement for. New York 75 Index by States. (For Index of Forms, see page 133.) PAGE Alabama 4 / Arizona 7 Arkansas 9 California 9 Colorado 15 Connecticut 19 Delaware 21 District of Columbia 21 Florida , 23 Georgia 25 Idaho z'j Illinois 27 Indiana 31 Indian Territory 33 Iowa 34 Kansas 36 Kentucky 39 Louisiana 41 Maine ' 41 Maryland 43 Massachusetts 47 Michigan 48 Minnesota 48 13s 136- INDEX BY STATES. PAGE Mississipjpi . . . . . . .,. 52 Missouri 5^ Montana 55 Nebraska 56 Nevada , 60 New Hampshirfe 60 New Jersey 64 New Mexico 67 New York. . ., .1 67 North Carolina 76 North Dakota 79 Ohio ., 81 Oklahoma 85 Oregon 87 Pennsylvania .. .. 89 Rhode Island 93 South Carolina 93 South Dakota 95 Tennessee 96 Texas 96 Utah 98 Vermont .• 98 Virginia loi Washington 105 West Virginia 107 Wisconsin no Wyoming u^