In re FARMERS' CO-OP. ASS'N OF MARION COUNTY, FLA.

In re FARMERS’ CO-OP. ASS’N OF MARION COUNTY, FLA. (District Court, S. D. Florida. February 4, 1925.) No. 2247. 1. Bankruptcy @=5184(2) — Instrument securing debt held a mortgage, and void for want of recording. Under. Rev. Gen. St. Fla. 1920, § 3836, providing that any instrument given to secure the payment of a debt is a mortgage, and if on personal property is void as against subsequent creditors, unless duly recorded or the mortgagee is givén possession of the property, a lien reserved by a contract for sale to bankrupt of a stock of merchandise, which was not acknowledged nor recorded prior to four months before the bankruptcy, is void as against the creditors, whose claims arose subsequent to the sale. 2. Chattel mortgages @=5 — Sales @=>300— Vendor’s lien can only arise for purchase price of particular article on which it is claimed; instrument held chattel mortgage. A vendor’s lien can only arise as security for the payment of the purchase price of the particular article on which it is claimed, and an instrument attempting to retain a lien on store fixtures for "the purchase price of- such fixtures, a stock of merchandise, and other property does not give a vendor’s lien, but is a chattel mortgage. In Bankruptcy. In the Matter of. the Farmers’ Co-operative Association of Marion County, Fla. On petition to review of order of referee denying priority to claim of the Carn-Thomas Company. Petition denied. R. A. Burford, of Ocala, Fla., for petitioning creditor. H. M. Hampton, of Ocala, Fla., for Lewis-Chitty Co., creditor. T. C. Atkinson, of Ocala, Fla., trustee. [MAJORITY — CALL, District Judge.] CALL, District Judge. This cause comes on for a hearing upon the petition of Carn-Thomas Company, to review the order of referee, entered September 23, 1924, denying the petition of the creditor to allow the sum of $670 of their claim as a priority. The facts disclosed in the record sent up for review, may be stated as follows: On November 8, 1920, the creditor sold to the bankrupt the stock of merchandise, store fixtures, and lease on the store building for a consideration of $7,489.86; $2,000 cash, and the balance deferred payments. The deferred payments to be made at the rate of $300 quarterly, with 8 per cent, interest. In the instrument executed by the parties, this provision was contained, as follows: “A vendor’s lien is reserved and retained by the Carn-Thomas Company upon the entire lot of fixtures sold hereunder until the purchase price is fully paid.” It is under this clause that the creditor bases its claims for priority. Under the statutes of the state of Florida ■ (section 3836 of the Revised General Statutes) any instrument givén to secure the payment of a debt is a mortgage and every such on. personal property is void as against subsequent creditors unless duly recorded, or the mortgagee is given possession of the personal property covered thereby. In the instant ease it is apparent that possession of all the property was delivered to the bankrupt upon the execution of the instrument on November 8, 1920, and continued so in its possession and control until an attempted assignment was made. No attempt was made to record the instrument by which a lien was attempted to be placed upon the store fixtures in order to secure the deferred .payments, until June of 1924, and then without any acknowledgment entitling the instrument to record. All the debts of the bankrupt, except the debt to this creditor, were incurred subsequent to this sale on November 8, 1920. The instrument says “vendor’s lien,” but this cannot be a vendor’s lien because a vendor’s lien can only arise as security for the payment of the purchase price of the particular article on which it is claimed. In the instant ease the price was for the stock of merchandise, store fixtures, and the lease of the store building; in fact, a bulk sale of the entire properties for a stated sum. There could be no vendor’s lien on any particular article therein included, and the attempt is made to retain a lien on the store fixtures until the entire debt is paid. It is clearly an instrument intended to secure the payment of a debt, and under the Florida statutes it will be held a mortgage, and same not having been duly recorded prior to the four-months period, is void. The petition to review the ruling of the referee will therefore be denied.