Chapter 40. ACTS VOID AS TO CREDITORS AND PURCHASERS.

§1. Acts Void as to Creditors, Purchasers and Others; Bona Fide Purchasers Excepted.—Every gift, conveyance, assignment, or transfer of, or charge upon, any estate, real or personal, every suit commenced, or decree, judgment, or execution suffered or obtained, and every bond or other writing given, with intent to delay, hinder, or defraud creditors, purchasers, or other persons, of or from what they or may be lawfully entitled to, shall as to such creditors, purchasers, or other persons, their representatives or assigns, be void. This section shall not affect the title of a purchaser for valuable consideration, unless it appear that he had notice of the fraudulent intent of his immediate grantor, or of the fraud rendering void the title of such grantor.(Code 1849, c. 118, §1; Code 1860, c. 118, §1; Code 1868, c. 74, §1; Code 1923, c. 74, §1.)

§2. Definition of “Transfer” and “Charge.”.—In sections three, four and five of this article the word “transfer” shall be taken to include every gift, sale, conveyance or assignment; and the word “charge” shall be taken to include every confessed judgment, trust deed, mortgage, lien or encumbrance.(Code 1849, c. 118, §2; Code 1860, c. 118, §2; Code 1868, c. 74, §2; 1891, c. 123, §2; 1895, c. 4, §2; Code 1923, c. 74, §2.)

§3. Voluntary Transfers or Charges.—Every transfer or charge which is not upon consideration deemed valuable in law shall be void as to creditors whose debts shall have been contracted at the time it was made; but shall not, upon that account merely, be void as to creditors whose debts shall have been contracted, or as to purchasers who shall have purchased, after it was made; and though it be decreed to be void as to a prior creditor because voluntary, it shall not for that cause be decreed to be void as to subsequent creditors or purchasers.(Code 1849, c. 118, §2; Code 1860, c. 118, §2; Code 1868, c. 74, §2; 1891, c. 123, §2; 1895, c. 4, §2; Code 1923, c. 74, §2.)

§4. Limitation of Suits to Avoid Voluntary Transfers or Charges.—No transfer or charge which is not on consideration deemed valuable in law shall be avoided, either in whole or in part, for that cause only, unless, within five years after it is made, suit be brought for that purpose, or the subject thereof, or some part of it, be distrained or levied on by or at the suit of a creditor as to whom such transfer or charge is declared to be voided by the next preceding section. But this section shall be subject to the provisions of section fifteen, article two, chapter fifty-five of this Code, extending the time within which an infant or insane person may sue.(Code 1849, c. 149, §13; Code 1860, c. 149, §13; Code 1868, c. 104, §14; 1882, c. 102, §14; Code 1923, c. 104, §14.)

§5. Transfers or Charges Creating a Preference.—Every transfer or charge made by an insolvent debtor attempting to prefer any creditor of such insolvent debtor, or to secure such a creditor or any surety or indorser for a debt to the exclusion or prejudice of any other creditor, shall be void as to such preference or security, but shall be taken to be for the benefit of all creditors of such debtor, and all the property so attempted to be transferred or charged shall be applied and paid pro rata upon all the debts owed by such debtor at the time such transfer or charge is made: Provided, That any such transfer or charge by an insolvent debtor shall be valid as to such preference or priority unless a creditor of such insolvent debtor shall institute a suit in chancery within one year after such transfer or charge was made to set aside and avoid the same and cause the property so transferred or charged to be applied toward the payment pro rata of all the debts of such insolvent debtor existing at the time such transfer or charge is made, subject, however, to the provisions hereinafter contained with reference to creditors uniting in such suit and contributing to the expenses thereof. But if such transfer or charge be admitted to record within eight months after it is made, then such suit to be availing must be brought within four months after such transfer or charge was admitted to record. Every such suit shall be deemed to be brought in behalf of the plaintiff and all other creditors of such insolvent debtor, but the creditor instituting such suit or proceeding, together with all creditors of such insolvent debtor who shall come into the suit and unite with the plaintiff before final decree and agree to contribute to the costs and expenses of such suit, shall be entitled to have their claims first paid in full pro rata out of the property so transferred or charged, in preference to any creditor of such debtor who shall before final decree decline or fail so to unite and agree to contribute to the costs and expenses of such suit, but not in preference to such creditor as may attempt to sustain the preference given him by such transfer or charge: Provided further, That nothing in this section shall be taken to prevent the making of a preference as security for the payment of purchase money or a bona fide loan of money or other bona fide debt contracted at the time such transfer or charge was made, or as security for one who at the time of such transfer or charge becomes an indorser or surety for the payment of money then borrowed: And provided further, That nothing in this section contained shall be taken to affect any transfer of bonds, notes, stocks, securities or other evidences of debt in payment of, or as collateral security for the payment of, a bona fide debt, or to secure any indorser or surety, whether such transfer is made at the time such debt is contracted or indorsement made or for the payment or security of a preexisting debt.(1891, c. 123, §2; 1895, c. 4, §2; Code 1923, c. 74, §2.)

§6. Judgment or Decree Not Prerequisite to Suit to Avoid Fraudulent or Voluntary Transfer or Charge.—A creditor, before obtaining a judgment or decree for his claim, may, whether such claim be due and payable or not, institute any suit which he might institute after obtaining such judgment or decree to avoid a gift, conveyance, assignment, or transfer of, or charge upon, the estate of his debtor, mentioned in any of the preceding sections of this article; and he may in such suit have all the relief in respect to such estate which he would be entitled to after obtaining a judgment or decree for the claim which he may be entitled to recover.(Code 1849, c. 179, §2; Code 1860, c. 179, §2; Code 1868, c. 133, §2; Code 1923, c. 133, §2.)

§7. Pretended Loan, Reservation or Limitation for Five Years Without Demand or Suit.—Where any loan of goods or chattels is pretended to have been made to any person with whom, or those claiming under him, possession shall have remained 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 pretended 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 to be void as to creditors of, and purchasers from, the person so remaining in possession, unless such loan, reservation, or limitation, be declared by will, deed or other writing, which (or in the case of such will, an authenticated copy of which) has been duly admitted to record within such five years in the county in which such goods or chattels may be. This section shall not apply to any conditional sale as defined in article three of this chapter.(Code 1849, c. 118, §3; Code 1860, c. 118, §3; Code 1868, c. 74, §3; 1872-3, c. 106, §3; 1882, c. 106, §3; Code 1923, c. 74, §3.)

§8. Effect of Recorded Contract as to Creditors and Purchasers.—Any contract in writing made in respect to real estate or goods and chattels in consideration of marriage; or any contract in writing made for the conveyance or sale of real estate, or an interest or term therein of more than five years, or any other interest or term therein, of any duration, under which the whole or any part of the corpus of the estate may be taken, destroyed, or consumed, except for domestic use, shall, from the time it is duly admitted to record, be, as against creditors and purchasers, as valid as if the contract were a deed conveying the estate or interest embraced in the contract.(Code 1849, c. 118, §4; Code 1860, c. 118, §4; Code 1868, c. 74, §4; Code 1923, c. 74, §4.)

§9. Contracts and Deeds Invalid as to Creditors and Purchasers Until Recorded.—Every such contract, every deed conveying any such estate or term, and every deed of gift, or trust deed or mortgage, conveying real estate or goods and chattels, shall be void as to creditors, and subsequent purchasers for valuable consideration without notice, until and except from the time that it is duly admitted to record in the county wherein the property embraced in such contract, deed, trust deed or mortgage may be.(Code 1849, c. 118, §5; Code 1860, c. 118, §5; Code 1868, c. 74, §5; Code 1923, c. 74, §5.)

§10. When Recordation in More Than One County Necessary.—Notwithstanding any such writing shall be duly admitted to record in one county wherein there is real estate, or goods or chattels, it shall nevertheless be void as to such creditors and purchasers in respect to other real estate or goods or chattels without the same, until it is duly admitted to record in the county wherein such other real estate, or goods or chattels, may be.(Code 1849, c. 118, §6; Code 1860, c. 118, §6; Code 1868, c. 74, §6; Code 1923, c. 74, §6.)

§11. Recordation in County to Which Property Removed From Other County; Time Saved to Persons Under Disability.—If any goods or chattels mentioned in such writing be removed from a county in which it is admitted to record, such writing shall, within three months after such removal, be admitted to record in the county to which the property is so removed; otherwise the same, for so long as it is not admitted to record in such last mentioned county, shall, as to the property so removed, be void as to such creditors or purchasers. But such writing shall not be so void in respect to the interests of any infant or insane person, if, before the end of three months after the disability shall cease, the writing be recorded in the county to which the property is removed.(Code 1849, c. 118, §8; Code 1860, c. 118, §8; Code 1868, c. 74, §7; Code 1923, c. 74, §7.)

§12. Recordation in County of This State to Which Property Removed From Other State; Time Saved to Persons Under Disability.—If any goods or chattels mentioned in such writing be removed from another state in which it is admitted to record to this State, such writing shall, within three months after such removal, be admitted to record in the county in this State to which the property is so removed; otherwise the same, for so long as it is not admitted to record in such county, shall, as to the property so removed, be void as to such creditors or purchasers. But such writing shall not be so void in respect to the interests of any infant or insane person, if, before the end of three months after the disability shall cease, the writing be recorded in the county to which the property is removed.

§13. Priorities of Writings Admitted to Record on Same Day.—Where two or more writings embracing the same property are admitted to record in the same county on the same day, if the previous sections do not provide for the case, that which was first admitted to record shall have priority in respect to the property in such county.(Code 1849, c. 118, §9; Code 1860, c. 118, §9; Code 1868, c. 74, §8; 1882, c. 50, §8; Code 1923, c. 74, §8.)

§14. Construction of Words “Creditors” and “Purchasers.”.—The words “creditors” and “purchasers,” where used in this chapter, shall not be restricted to the protection of creditors of, and purchasers from, the grantor, but shall extend to and embrace all creditors and purchasers who, but for the deed or writing, would have had title to the property conveyed, or a right to subject it to their debts.(Code 1849, c. 118, §11; Code 1860, c. 118, §11; Code 1868, c. 74, §9; Code 1923, c. 74, §9.)

§15. When Purchaser Not Affected by Record.—A purchaser shall not, under this article, or articles one, two and eleven, chapter thirty-eight of this Code, be affected by the record of a deed or contract made by a person under whom his title is not derived; nor by the record of a deed or contract made by any person under whom the title of such purchaser is derived, if it was made by such person, and was recorded, before he acquired the legal title.(Code 1849, c. 118, §12; Code 1860, c. 118, §12; Code 1868, c. 74, §10; Code 1923, c. 74, §10.)

§16. Sections Eight to Fifteen, Both Inclusive, Not to Apply to Transfer or Assignment of Interest Created by Trust Deed or Mortgage.—The provisions of sections eight, nine, ten, eleven, twelve, thirteen, fourteen and fifteen of this article shall have no application to the transfer or assignment of any interest created by a trust deed or mortgage.

§1. When Sale in Bulk of Merchandise or Fixtures Fraudulent and Void.—The sale in bulk of any part, or the whole, of a stock of goods, wares and merchandise and/or fixtures, pertaining to the conducting of the seller’s business, otherwise than in the ordinary course of trade and in the regular prosecution of the business of the seller, shall be fraudulent and void as against the creditors of the seller, unless the seller and purchaser shall, at least fifteen days before the sale, make a full detailed inventory, showing the quantity, and, so far as possible with the exercise of reasonable diligence, the cost price to the seller, of each article to be included in the sale and the price to be paid therefor; and unless the purchaser demand and receive from the seller a written list of the names and addresses of the creditors of the seller, with the amount of indebtedness due or owing to each, certified by the seller under oath to be a full, accurate and complete list of his creditors, and of his indebtedness, or a statement certified by the seller under oath that he has no creditors; and unless the purchaser shall, at least fifteen days before taking possession of such goods, wares and merchandise and/or fixtures, or paying therefor or giving some note or other evidence of indebtedness therefor, notify personally or by registered mail every creditor whose name and address is stated in such list, or of which he has knowledge, of the proposed sale and stating the aggregate value of the goods, wares and merchandise and/or fixtures, proposed to be sold, as shown by such inventory, and the price, terms and conditions of such sale.(1909, c. 78, §1; 1921, c. 108, §1; Code 1923, c. 74, §3a.)

§2. When Such Sale to be Deemed Prima Facie Void.—If such inventory, or such list of creditors and debts, or such statement that the seller has no creditors, or such notice to creditors, shall in any respect be false or incomplete with respect to the matters required by the next preceding section to be stated therein, then and in either of such events such sale shall prima facie be presumed to be fraudulent and void as against the creditors of such seller, and the burden shall be upon the purchaser to show that he acted in good faith and without any knowledge of such falsity or incompleteness.

§3. Liability of Purchaser to Creditors of Seller.—If such sale be invalid by virtue of either of the two preceding sections, the goods, wares and merchandise and/or fixtures, in the hands of the purchasers, or any part thereof, if found in his hands, shall be liable to such creditors; and in event the same, or any part thereof, shall be withdrawn or disposed of by such purchaser, then the purchaser himself shall also be liable to such creditors of such seller, in any action at law, to the extent of the value of the goods, wares and merchandise and/or fixtures so received by him and thus withdrawn or disposed of.(1921, c. 108, §1; Code 1923, c. 74, §3a.)

§4. Preservation of Inventory, List and Affidavit; Limitation of Suit or Action.—The seller and purchaser shall each preserve the inventory, list and affidavit required by the first section of this article for the period of six months after such sale and purchase, and the same shall be open to the inspection of the creditors of the seller. After the expiration of such six months’ period, no suit or action shall be brought to have declared void, or the effect of which will be to have adjudicated void, any such sale or purchase as is mentioned in this article.

§5. Definition of Seller and Purchaser.—Sellers and purchasers under this article shall include corporations, associations, copartnerships and individuals, but nothing contained in this article shall apply to sales by executors, administrators, receivers, assignees under a voluntary assignment for the benefit of creditors, trustees in bankruptcy, or by any one acting under judicial process.(1909, c. 78, §2; 1921, c. 108, §2; Code 1923, c. 74, §3a.)

§6. Form of Notice to Creditors.—The notice to creditors of the seller, as provided in this article, shall be sufficient if in form or effect as follows:

(1921, c. 108, §3; Code 1923, c. 74, §3a.)

§1. Definition of Terms.—In this article “conditional sale” means: (a) Any contract for the sale of goods under which possession is delivered to the buyer and the property in the goods is to vest in the buyer at a subsequent time upon the payment of part or all of the price, or upon the performance of any other condition or the happening of any contingency; or (b) any contract for the bailment or leasing of goods by which the bailee or lessee contracts to pay as compensation, a sum substantially equivalent to the value of the goods, and by which it is agreed that the bailee or lessee is bound to become, or has the option of becoming, the owner of such goods upon full compliance with the terms of the contract.

“Buyer” means the person who buys or hires the goods covered by the conditional sale, or any legal successor in interest of such person.

“Filing district” means the subdivision of the State in which conditional sale contracts, or copies thereof, are required by this article to be filed.

“Goods” means all chattels personal other than things in action and money, and includes emblements, industrial growing crops, and things attached to or forming a part of land which are agreed to be severed before sale or under the conditional sale.

“Performance of the condition” means the occurrence of the event upon which the property in the goods is to vest in the buyer, whether such event is the performance of an act by the buyer or the happening of a contingency.

“Person” includes an individual, partnership, corporation, and any other association.

“Purchase” includes mortgage and pledge.

“Purchaser” includes mortgagee and pledgee.

“Seller” means the person who sells or leases the goods covered by the conditional sale or any legal successor in interest of such person.(1921, c. 75, §1; Code 1923, c. 99A, §1; 1925, c. 64, §1.)

§2. Primary Rights of Buyer.—The buyer shall have the right, when not in default, to retain possession of the goods, and he shall also have the right to acquire the property in the goods on the performance of the conditions of the contract. The seller shall be liable to the buyer for the breach of all promises and warranties, expressed or implied, made in the conditional sale contract, whether or not the property in the goods has passed to the buyer.(1921, c. 75, §2; Code 1923, c. 99A, §2; c. 1925, c. 64, §2.)

§3. Primary Rights of Seller.—The buyer shall be liable to the seller for the purchase price, or for installments thereof, as the same shall become due, and for breach of all promises made by him in the conditional sale contract, whether or not the property in the goods has passed to the buyer.(1921, c. 75, §3; Code 1923, c. 99A, §3; 1925, c. 64, §3.)

§4. Conditional Sales Valid Except as Otherwise Provided.—Every provision in a conditional sale reserving property in the seller after possession of the goods is delivered to the buyer, shall be valid as to all persons, except as hereinafter otherwise provided.(1921, c. 75, §4; Code 1923, c. 99A, §4; 1925, c. 64, §4.)

§5. Conditional Sales Void as to Certain Persons.—Every provision in a conditional sale reserving property in the seller shall be void as to any purchaser from or creditor of the buyer, who, without notice of such provision, purchases the goods or acquires by attachment or levy or otherwise a lien upon them, before the contract or a copy thereof shall be filed as hereinafter provided, unless such contract or copy is so filed within ten days after the making of the conditional sale.(1921, c. 75, §5; Code 1923, c. 99A, §5; 1925, c. 64, §5.)

§6. Place of Filing; Acknowledgment Not Necessary; Exceptions.—The conditional sale contract or copy shall be filed in the office of the clerk of the county court in the county in which the goods are first kept for use by the buyer after the sale. It shall not be necessary to the validity of such conditional sale contract, or in order to entitle it to be filed, that it be acknowledged or attested. This section shall not apply to the contracts described in section eight of this article.(1921, c. 75, §6; Code 1923, c. 99A, §6; 1925, c. 64, §6.)

§7. Fixtures.—If the goods are so affixed to realty, at the time of a conditional sale or subsequently, as to become a part thereof and not to be severable wholly or in any portion without material injury to the freehold, the reservation of property as to any portion not so severable shall be void after the goods are so affixed, as against any person who has not expressly assented to the reservation. If the goods are so affixed to realty at the time of a conditional sale or subsequently as to become part thereof but to be severable without material injury to the freehold, the reservation of property shall be void after the goods are so affixed as against subsequent purchasers of the realty for value and without notice of the conditional seller’s title, unless the conditional sale contract, or a copy thereof, together with a statement signed by the seller briefly describing the realty and stating that the goods are or are to be affixed thereto, shall be filed, before such purchase of the realty, in the office where a deed of the realty would be recorded or registered to affect such realty. As against the owner of realty the reservation of the property in goods by a conditional seller shall be void when such goods are to be so affixed to the realty as to become part thereof but to be severable without material injury to the freehold, unless the conditional sale contract, or a copy thereof, together with a statement signed by the seller briefly describing the realty and stating that the goods are to be affixed thereto, shall be filed before they are affixed, in the office where a deed would be recorded or registered to affect such realty.(1921, c. 75, §7; Code 1923, c. 99A, §7; 1925, c. 64, §7.)

§8. Railroad Equipment, Rolling Stock, Watercraft and Barges.—No conditional sale of railroad or street or interurban railway equipment or rolling stock or of commercial watercraft or barges or any equipment thereon shall be valid as against the purchasers and creditors described in section five of this article, unless the contract shall be acknowledged by the buyer or attested in like manner as a deed of real property and the contract, or a copy thereof, shall be filed in the office of the secretary of state; and unless, when any engine or car or such watercraft or barge so sold is delivered, there shall then be plainly and conspicously marked upon each side thereof the name of the seller, followed by the word “owner.”(1921, c. 75, §8; Code 1923, c. 99A, §8; 1925, c. 64, §8; 1929, c. 79.)

§9. Conditional Sale of Goods for Resale.—When goods are delivered under a conditional sale contract, and the seller expressly or impliedly consents that the buyer may resell them prior to performance of the condition, the reservation of property shall be void against purchasers from the buyer for value in the ordinary course of business, and as to them the buyer shall be deemed the owner of the goods, even though the contract or a copy thereof shall be filed according to the provisions of this article.(1921, c. 75, §9; Code 1923, c. 99A, §9; 1925, c. 64, §9.)

§10. Filing.—The filing officer shall mark upon the contract or copy filed with him for record the day and hour of filing and shall file the contract or copy in his office for public inspection. He shall keep a separate book in which he shall enter the names of the seller and buyer, the date of the contract, the day and hour of filing, a brief description of the goods, the price named in the contract and the date of cancellation thereof, except that in entering the contracts mentioned in section eight of this article, the secretary of state shall record either the sum remaining to be paid upon the contract or the price of the goods. Such book shall be indexed under the names of both seller and buyer. For filing and entering such contract or copy, a fee of fifty cents shall be charged.(1921, c. 75, §10; Code 1923, c. 99A, §10; 1925, c. 64, §10.)

§11. Refiling.—The filing of conditional sale contracts provided for in sections five, six and seven of this article shall be valid for a period of three years only. The recording of the contracts provided for by section eight of this article shall be valid for a period of fifteen years only. The validity of the filing or recording may in each case be extended for successive additional periods of one year from the date of refiling or rerecording by filing or recording in the proper filing district a copy of the original contract a within thirty days next preceding the expiration of each period, with a statement attached, signed by the seller, showing that the contract is in a force and the amount remaining to be paid thereon. Such copy, with statement attached, shall be filed or recorded in the same manner as a contract or copy for the first time, and the filing or recording officer shall be entitled to a like fee as upon the original filing or recording.(1921, c. 75, §11; Code 1923, c. 99A, §11; 1925, c. 64, §11.)

§12. Cancellation of Contract.—After the performance of the condition, upon written demand delivered personally or by registered mail by the buyer or any other person having an ( interest in the goods, the seller shall execute, acknowledge and deliver to the demandant a statement that the condition in the contract has been performed. If for ten days after such demand the seller fails to mail or deliver such a statement of satisfaction, he shall forfeit to the demandant five dollars and be liable for all damages suffered. Upon presentation of such a statement of satisfaction the filing officer shall file the same and note the cancellation of the contract and the date thereof on the margin of the page where the contract has been entered. For filing and entering the statement of satisfaction the filing officer shall charge a fee of thirty-five cents, except that the secretary of a state shall charge a fee of fifty cents for entering a statement of the satisfaction of a contract described in section eight of this article.(1921, c. 75, §12; Code 1923, c. 99A, §12; 1925, c. 64, §12.)

§13. Prohibition of Removal or Sale Without Notice.—Unless the contract otherwise provides, the buyer may, without the consent of the seller, remove the goods from any county wherein the contract is filed, and sell, mortgage or otherwise dispose of his interest in them; but, prior to the performance of the condition, no such buyer shall remove the goods from a county in which the contract or a copy thereof is filed, except for temporary uses for a period of not more than thirty days, unless the buyer not less than ten days before such removal shall give the seller personally or by registered mail written notice of the place to which the goods are to be removed and the approximate time of such intended removal; nor prior to the performance of the condition shall the buyer sell, mortgage or otherwise dispose of his interest in the goods, unless he, or the person to whom he is about to sell, mortgage or otherwise dispose of the same, shall notify the seller in writing personally or by registered mail of the name and address of the person to whom his interest in the goods is about to be sold, mortgaged or other wise transferred, not less than ten days before such sale, mortgage or other disposal. If any buyer does so remove the goods, or does so sell, mortgage or otherwise dispose of his interest in them without such notice or in violation of the contract, the seller may retake possession of the goods and deal with them as in case of default in payment of part or all of the purchase price. The provisions of this section regarding the removal of goods shall not apply, however, to the goods described in section eight of this article.(1921, c. 75, §13; Code 1923, c. 99A, §13; 1925, c. 64, §13.)

§14. Refiling on Removal.—When, prior to the performance of the condition, the goods are removed by the buyer from one county in this State to another county in this State in which such contract or a copy thereof is not filed, or are removed from another state into a county in this State where such contract or copy is not filed, the reservation of the property in the seller shall be void, as to the purchasers and creditors described in section five of this article, unless the conditional sale contract or a copy thereof shall be filed in the county to which the goods are removed, within ten days after the seller has received notice of the county to which the goods have been removed. The provisions of this section shall not apply, however, to the goods described in section eight of this article. The provisions of section eleven of this article regarding the duration of the validity of the filing and the necessity for refiling shall apply to contracts or copies which are filed in a county other than that where the goods are originally kept for use by the buyer after the sale.(1921, c. 75, §14; Code 1923, c. 99A, §14; 1925, c. 64, §14.)

§15. Injury, Destruction, Concealment, Removal, Encumbrance or Sale.—When, prior to the performance of the condition, the buyer, maliciously or with intent to defraud, shall injure, destroy or conceal the goods, or shall sell, mortgage or otherwise dispose of them under claim of full ownership, or maliciously or with intent to defraud shall remove them to another state or to a county in this State where the contract or a copy thereof is not filed, he shall be guilty of a misdemeanor, if the amount due on the goods so injured, destroyed, concealed, removed, mortgaged, sold or otherwise disposed of is less than twenty dollars, and, upon conviction thereof, shall be imprisoned in the county jail for not more than one year, or be fined not more than five hundred dollars, or both. Where the amount due on the goods thus injured, destroyed, concealed, removed, mortgaged, sold or otherwise disposed of is greater than twenty dollars, the buyer shall be guilty of a felony and, upon conviction thereof, shall be fined not less than one hundred nor more than one thousand dollars, or be imprisoned in the penitentiary for not less than one year nor more than five years, or both, in the discretion of the court. When, prior to the performance of the condition, the buyer, without having given the notice required by section thirteen of this article, but without malice and without intent to defraud, shall remove such goods to another state or to a county in this State where the contract or a copy thereof is not filed, he shall be guilty of a misdemeanor, and, upon conviction thereof, shall be imprisoned in the county jail for not more than one year, or be fined not more than five hundred dollars, or both. Any such removal without such notice having been given shall be deemed prima facie fraudulent.(1921, c. 75, §15; Code 1923, c. 99A, §15; 1925, c. 64, §15.)

§16. Retaking Possession.—When the buyer shall be in default in the payment of any sum due under the contract, or in the performance of any other condition which the contract requires him to perform in order to obtain the property in the goods, or in the performance of any promise, the breach of which is by the contract expressly made a ground for the retaking of the goods, the seller may retake possession thereof. Unless the goods can be retaken without breach of the peace, they shall be retaken by legal process; but nothing herein shall be construed to authorize a violation of the criminal law.(1921, c. 75, §16; Code 1923, c. 99A, §16; 1925, c. 64, §16.)

§17. Notice of Intention to Retake.—Not more than forty nor less than twenty days prior to the retaking, the seller, if he so desires, may serve upon the buyer personally, or by registered mail, a notice of intention to retake the goods on account of the buyer’s default. The notice shall state the default and the period at the end of which the goods will be retaken, and shall briefly and clearly state what the buyer’s rights under this article will be in case they are retaken. If the notice is so served and the buyer does not perform the obligations in which he has made default before the day set for retaking, the seller may retake the goods and hold them subject to the provisions of sections nineteen, twenty, twenty-one, twenty-two and twenty-three of this article regarding resale, but without any right of redemption.(1921, c. 75, §17; Code 1923, c. 99A, §17; 1925, c. 64, §17.)

§18. Redemption.—If the seller does not give the notice of intention to retake described in section seventeen of this article, he shall retain the goods for ten days after the retaking within the state in which they were located when retaken, during which period the buyer, upon payment or tender of the amount due under the contract at the time of retaking and interest, or upon performance or tender of performance of such other condition as may be named in the contract as precedent to the passage of the property in the goods, or upon performance or tender of performance of any other promise for the breach of which the goods were retaken, and upon payment of the expenses of retaking, keeping and storage, may redeem the goods and become entitled to take possession of them and to continue in the performance of the contract as if no default had occurred. Upon written demand delivered personally or by registered mail by the buyer, the seller shall furnish to the buyer a written statement of the sum due under the contract and the expense of retaking, keeping and storage. For failure to furnish such statement within a reasonable time after demand, the seller shall forfeit to the buyer ten dollars and also be liable to him for all damages suffered because of such failure. If the goods are perishable so that retention for ten days as herein prescribed would result in their destruction or substantial injury, the provision of this section shall not apply, and the seller may resell the goods immediately upon their retaking. The provision of this section requiring the retention of the goods within the State during the period allowed for redemption shall not apply to the goods described in section eight of this article.(1921, c. 75, §18; Code 1923, c. 99A, §18; 1925, c. 64, §18.)

§19. Compulsory Resale by Seller.—If the buyer does not redeem the goods within ten days after the seller has retaken possession, and the buyer has paid at least fifty per cent of the purchase price at the time of the retaking, the seller shall sell them at public auction in the state where they were at the time of the retaking, such sale to be held not more than thirty days after retaking. The seller shall give to the buyer not less than ten days’ written notice of the sale, either personally or by registered mail, directed to the buyer at his last known place of business or residence. The seller shall also give notice of the sale by at least three notices posted in different public places within the county where the goods are to be sold, at least five days before the sale. If at the time of the retaking five hundred dollars or more has been paid on the purchase price, the seller shall also give notice of the sale at least five days before the sale by publication in a newspaper published or having a general circulation within the county where the goods are to be sold. The seller may bid for the goods at the resale. If the goods are of the kind described in section eight of this article, the parties may fix in the conditional sale contract the place where the goods shall be resold.(1921, c. 75, §19; Code 1923, c. 99A, §19; 1925, c. 64, §19.)

§20. Resale at Option of Parties.—If the buyer has not paid at least fifty per cent of the purchase price at the time of the retaking, the seller shall not be under a duty to resell the goods as prescribed in section nineteen of this article, unless the buyer serves upon the seller, within ten days after the retaking, a written notice demanding a resale, delivered personally or by registered mail. If such notice is served, the resale shall take place within thirty days after the service, in the manner, at the place and upon the notice prescribed in said section nineteen. The seller may voluntarily resell the goods for account of the buyer on compliance with the same requirements.( 1921, c. 75, §20; Code 1923, c. 99A, §20; 1925, c. 64, §20.)

§21. Proceeds of Resale.—The proceeds of the resale shall be applied (a) to the payment of the expenses thereof, (b) to the payment of the expenses of retaking, keeping and storing the goods, (c) to the satisfaction of the balance due under the contract. Any sum remaining after the satisfaction of such claims shall be paid to the buyer.(1921, c. 75, §21; Code 1923, c. 99A, §21; 1925, c. 64, §21.)

§22. Deficiency on Resale.—If the proceeds of the resale are not sufficient to defray the expenses thereof, and also the expenses of retaking, keeping and storing the goods and the balance due upon the purchase price, the seller may recover the deficiency from the buyer, or from anyone who has succeeded to the obligations of the buyer.(1921, c. 75, §22; Code 1923, c. 99A, §22; 1925, c. 64, §22.)

§23. Rights of Parties Where There is no Resale.—Where there is no resale, the seller may retain the goods as his own property without obligation to account to the buyer except as provided in section twenty-five of this article, and the buyer shall be discharged of all obligation.(1921, c. 75, §23; Code 1923, c. 99A, §23; 1925, c. 64, §23.)

§24. Election of Remedies.—After the retaking of possession as provided in section sixteen of this article, the buyer shall be liable for the price only after a resale and only to the extent provided in section twenty-two of this article. Neither the bringing of an action by the seller for the recovery of the whole or any part of the price, nor the recovery of judgment in such action, nor the collection of a portion of the price, shall be deemed inconsistent with a later retaking of the goods as provided in said section sixteen. But such right of retaking shall not be exercised by the seller after he has collected the entire price, or after he has claimed a lien upon the goods, or attached them, or levied upon them as the goods of the buyer.(1921, c. 75, §24; Code 1923, c. 99A, §24: 1925, c. 64, §24.)

§25. Recovery of Part Payments.—If the seller fails to comply with the provisions of sections eighteen, nineteen, twenty, twenty-one and twenty-three of this article after retaking the goods, the buyer may recover from the seller his actual damages, if any, and in no event less than one-fourth of the sum of all payments which have been made under the contract, with interest.(1921, c. 75, §25; Code 1923, c. 99A, §25; 1925, c. 64, §25.)

§26. Waiver of Statutory Protection.—No act or agreement of the buyer before or at the time of the making of the contract, nor any agreement or statement by the buyer in such contract, shall constitute a valid waiver of the provisions of sections eighteen, nineteen, twenty, twenty-one and twenty-five of this article; except that the contract may stipulate that, on such default of the buyer as is provided for in section sixteen of this article, the seller may rescind the conditional sale, either as to all the goods or as to any part thereof for which a specific price was fixed in the contract. If the contract thus provides for rescission, the seller at his option may retake such goods without complying with or being bound by the provisions of sections seventeen to twenty-five, inclusive, of this article, as to the goods retaken, upon crediting the buyer with the full purchase price of those goods. So much of this credit as is necessary to cancel any indebtedness of the buyer to the seller shall be so applied, and the seller shall repay to the buyer on demand any surplus not so required.(1921, c. 75, §26; Code 1923, c. 99A, §26; 1925, c. 64, §26.)

§27. Loss and Increase of Goods.—After the delivery of the goods to the buyer and prior to the retaking of them by the seller, the risk of injury and loss shall rest upon the buyer. The increase of the goods shall be subject to the same conditions as the original goods.(1921, c. 75, §27; Code 1923, c. 99A, §27; 1925, c. 64, §27.)

§28. From What Date This Article to be in Operation.—This article shall not apply to conditional sales made prior to the time when it takes effect.(1921, c. 75, §28; Code 1923, c. 99A, §28; 1925, c. 64, §28.)

§29. Rules for Cases Not Provided for.—In any case not provided for in this article the rules of law and equity, including the law merchant, and in particular those relating to principal and agent and to the effect of fraud, misrepresentation, duress or coercion, mistake, bankruptcy, or other invalidating cause, shall continue to apply to conditional sales.(1921 c. 75, §29; Code 1923, c. 99A, §29; 1925, c. 64, §29.)

§30. Destruction of Contract or Copy After Validity Ceases.—When any conditional sale contract or copy, which is filed under and in pursuance of this article, shall cease to be valid for a period of five years, then and in such case the clerk of the county court may remove from the files and destroy such contract or copies so filed.(1925, c. 64, §30.)

§31. Uniformity of Interpretation.—Th article shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it.(1921, c. 75, §30; Code 1923, c. 99A, §30; 1925, c. 64, §31.)

§32. Title of Sales Act.—This article may be cited as the Uniform Conditional Sales Act.(1921, c. 75, §31; Code 1923, c. 99A, §31; 1925 c. 64, §32.)