Page:Federal Reporter, 1st Series, Volume 7.djvu/565

 HART V. BAENEi & SMITH MANUF'G 00. ^53 �the purcliase money, as well ae the passing of the titie, la condi' tional. If, by tHe' teignis; 6I the agreemeut, iHe' 'Jiufciiaser becomes Uable unvon'diiHohally fqt the pttrciiase'pricei aiiiiough by the agreement !h0 liiay'neyer get the title and ownershii) of the property, then'tfae a^reettient is an evasiSn of the re^- istraitibn Btatute, ae'ita ^litpcfse is siniply to rot'aiti'a'secirei lierl. THe-' defeiiaa'nt''^' 'agreeiii'ent with ' Berthdura pOviiies that thfe^^&4|^'tesiinle'tfi^oyses6ion of fee'yi-^ if ^eM(M3i f aileS toi *pay t'hy 'aeieiiea ' 'payMieiits, nolie','-ot'T:eiie vivais,;' " MA inay ther'eattef sell' 'thie ' situe' 'at ' public' 6r^ pii va!te ' sale^ ' a'iiJeif 10 days' #riyeii-tt6tice tb 'sald Earty, and applj^ <^e 'p'tocieedl oatheuipaid «toteoi'^Hythe'r due' or.iiotf'th^'^a'^ii ^aM^'i^ tiie seourtd. yiiMi"ei'm t'erdainiHa liable' %V any%dianceSfsWh ���ki%g liable 'fo¥ any' odlance ' 'Sf' slit;^ note& thereby unpaid." '* ' "  ;" �This provision makes the' bu^rer' bolind' 'dHadn}aitiokaE^''iox the purchase price, even though he never gets the title and ownership of the property. Is not-this conclusive evidence that the agreement which it is insisted evidences a conditional sale is merely a. deyice to retain a secret,[and unrecorded lien on the property sold? The purchase price of these cars was $2,930, ofi which ,$l,450;B2'v<*aspaid in cash, and a 60 days' note for $1,479.68 given. The agreement provides that if Berthourd failed to pay said note, or any ren^wal as it bec9:me,due, orwithin 10 days thereaf ter, theBaTiney & Smith Manufactnring Company would have the right to resume the possession of the cars ai^d sell them at piiblic bi? J)rivate sale. Berthourd, theref ore, paid |l,432.32 in cash, and became unconditionally liabl« for $1,479.68 more; and, ■acc9.r4iiig t» the agreement,- onlyobtained the :use of these cars for 70^ days. If he retained them longer it would be entirely at the option of the Barney & Smith Manufacturing Company. Thia pfoves that the real natiire of the transaction was simp)y a device to retain an. unrecprdcd |ieii. _, �My attention has beeri called to' two recent, mafiiuscript opinions of the Kentuck^', court . of appeals, in wEich it is claimid the ebtir't Has- lioaified ite ^decision in Greer 'i'.Clturck (e Co. One' bf'those' opinions is'to the eflfect thlai' a 'ebatracit. of renting peisonal property, in which the party bas the priv- ��� �