If the original retention-title contracts were bona fide and free from fraud, and there is no evidence tending to show that they were not, any person, natural or artificial, would have had the right to buy them and take a transfer whether with good intention or fraudulent intention. I think the jury would have been authorized to find that all of the payments made on the automobile notes except the last two were in fact payments by Howe Durham himself, and that they should have been credited on the notes. I don't think that this question should be confused with the transfer of the notes and whether the transfers were fraudulent. The question of the transfer and the question of how much balance there was due at the time of the transfers are two very different things. It is undisputed thatat the time of the last payments of installments of the notes the corporation obtained the transfers of the notes. Regardless of what it had been doing as to the other payments, it certainly had the right to refuse to continue to advance money to Howe Durham without security, and to obtain *Page 375 a transfer of the notes to secure the last instalments paid with its own money. There is no evidence that the last instalments were paid with Howe Durham's money. I think the verdict was unauthorized as to the automobiles because the title was in the corporation and the last two instalments were not tendered to it before the attempted levy.
There was no valid levy as to the stock because the levy does not divulge what stock was levied on. The filing of a claim by the corporation to ten shares cured that defect so far as the particular ten shares were concerned. The issue as to the other ten shares was not in the case. Nobody claimed it because nobody could tell who should claim it, not knowing whose stock was levied on. The corporation did not and could not claim it for its owner. It was therefore error for the court to admit in evidence the tax returns of Mrs. Howe Durham. She was not a party claimant, and the question as to whether she owned the ten shares to which no claim was filed was not being adjudicated in the trial. The admission of this evidence might easily have been prejudicial to the claimant. I think a new trial should be granted.