ON PETITION FOR REHEARING.
Per CURIAM.Attorneys for appellants have filed a very interesting and able petition for rehearing in this case, but after consideration of the reasons urged and the authorities cited in support thereof we feel it our duty to adhere to the conclusions announced in the opinion originally filed herein.
Appellants contend that since the sale was conditional and the title was, by the terms of the contract, not to vest in the vendee until full payment should be made, the vendor could waive the conditions and thereby vest title in the vendee, and that the commencement of an action to recover the purchase price was an implied waiver of such conditions. This proposition seems to be fully supported by the authorities to which we are cited by the appellants. (2 Benjamin on Sales, p. 550; Tiffany on Sales, p. 158; Holt Mfg. Co. v. Ewing, 109 Cal. 353, 42 Pac. 435; Detroit etc. Co. v. Stevens, 16 Utah, 177, 52 Pac. 379; Fowler v. Bowery Sav. Bank, 113 N. Y. 450, 10 Am. St. Rep. 489, 21 N. E. 172, 4 L. R. A. 145; Park & Lacy Co. v. White River Lumber Co., 101 Cal. 37, 35 Pac. 442; Smith v. Barber, 153 Ind. 322, 53 N. E. 1014; Bailey v. Hervey, 135 Mass. 174.)
Upon principle a vendor who sells personal property, reserving in himself the title and right of possession, should be deemed to have waived his right to repossess himself of the property whenever he commences an action for the recovery of the purchase price. The reservation of title is a protection for the vendor alone, and enables him to pursue the property in case the purchase price shall not be paid when due. This right he may forego if he chooses to do so. The vendee, on the other hand, hás unqualifiedly ’ obligated himself to pay the purchase price, and has likewise agreed that'the title to the property *175shall remain in the vendor as security for the amount unpaid. There is nothing for the vendee to waive, and he can suffer no injury by reason of any waiver made 'by his creditor. Certainly a vendor could not recover a judgment for the purchase price of his goods and still retain the title to the goods and right to recover them.
The question here presented is, Can the vendor, after commencing his action for a recovery of the balance of the purchase price have an attachment issued thereon against the property of the vendee? Section 4303, Eevised Statutes, requires the plaintiff to make and file an affidavit with the clerk before he can have a writ of attachment issued, and it is there required, inter alia, that the affidavit shall set forth; “that the payment of the same has not been secured by any mortgage or lien upon real or personal property, or any pledge of personal property, or if originally secured, that such security has without any act of the plaintiff, or the person to whom the security was given, become valueless.” Keeping this statute in view, was the debt originally secured? And if so, had the security become valueless without any act of the plaintiff? The debt was, so far as defendant is concerned, unalterably and unqualifiedly contracted when the conditional sale contract was entered into and at that time the plaintiff contracted with defendant for the right to retake the property. This right was undoubtedly a “security” to the plaintiffs. When they- waived the conditions of the sale and passed title to the defendant they certainly waived this security by their own act. We do not see how a creditor can make the required affidavit under these conditions, unless, in fact, the property has been destroyed, consumed, worn out, or otherwise become “valueless without'any act of plaintiff.” ‘
It is urged by appellants that they had no “security” for their debt as contemplated by our statute. That it was not a mortgage, and was not a lien, and not a pledge.
It occurs to us that plaintiffs’ security was a higher class of-security than either a mortgage, lien or pledge; it was a reservation of the title itself with a right to take possession at any time condition should be broken. Here the creditor held a se*176curity for the sum owed him from his debtor which did not require any of the processes of law to devest the title. All that was-necessary for him to do in order to realize on his security was to obtain possession of the property. This we think clearly a security within both the letter and spirit of the attachment statute supra, and that the plaintiff could not abandon such security because, perchance, he preferred an attachment lien to the security he already had. *
A rehearing is denied.