(dissenting) :
It is my conclusion that the trial court erred in entry of judgment for the defendant-respondent. Briefly, the reasons for this conclusion are as follows:
The parties have considered the machinery the subject of the conditional sale contract entered into in Kansas, by appellant’s assignor as vendor and Simpson as being “farm machinery”. That it was farm machinery is sustained by the record, as respondent Talkington used this equipment for that purpose. I.C. § 64-801 requires that conditional sales contracts be recorded in the county where the property is located, otherwise the vendee has title as to subsequent purchasers and encumbrancers of such property in good faith and for value. I.C. § 64-805, however, makes inapplicable the other provisions of I.C. Ch. 8, title 64, as to farm implements and machinery.
I.C. § 64 — 207, states: “ * * * where goods are sold by a person who is not the owner thereof, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, * *
This court has held that a seller of personal property can convey no greater title than he had, and it makes no difference that the purchaser had no notice and was ignorant of the existence of other parties in interest. Federal Land Bank v. McCloud, 52 Idaho 694, 20 P.2d 201; Brunette v. Idaho Veneer Co., 86 Idaho 193, 384 P.2d 233.
Simpson at the time he entered into the contract with appellant’s assignor, took only a conditional title. When he brought the equipment to Idaho, (contrary to the express provisions of the conditional sales contract,) he brought a conditional title with him — his title could not ripen into full ownership without making the payments provided by the conditional sales contract. In my opinion the failure to record this conditional sales contract is immaterial in the instant action, for as between Simpson and the Fox Implement Company (appellant’s assignor), the contract was valid. When by subsequent transactions, Simpson sold the equipment to Brooks, and Brooks entered into the contract with respondent, all that Simpson could convey was the title he had, subject to the obligation to comply with the terms of the Kansas contract.
The contract respondent relies on for his title is one that was wholly completed within the State of Idaho; the parties to the *512contract were within the jurisdiction of this state, and the machinery itself was here. Under the majority opinion, the law of Kansas, which requires the recording of a conditional sales contract for it to be valid as against subsequent purchasers and incumbrancers in good faith and for value, is being applied to a transaction that takes place in Idaho, between Idaho parties, with the property itself being in Idaho.
Respondent’s title to this property should be judged on the basis of Idaho law. Marvin Safe Co. v. Norton (Sup.Ct.1886), 48 N.J.L. 410, 7 A. 418, 57 Am.Rep. 566. In that case a safe was purchased in Philadelphia under a title retaining contract. Under the Pennsylvania law such contract was invalid as against creditors of the purchaser or bona fide purchaser from him. After the purchase of the safe in Pennsylvania, the purchaser brought it to New Jersey and later sold it in New Jersey, to a third party for cash. The question arose as to whether the original vendor or the third party was entitled to the safe, and the Supreme Court of New Jersey held the original vendor prevailed. That court pointed out there were two transactions involved. At the time of the first transaction the safe was in Pennsylvania and the vendor had a security title. In New Jersey there was a second transaction in which the safe was purchased by an innocent purchaser. Applying the law of New Jersey, the law of the situs at the time of this second transaction, the court found that by that law the innocent purchaser secured no interest in the chattel as against the holder of the security title. It determined the rights acquired in the second transaction by the law of the situs at the time of that transaction.
In the instant case, there were also two transactions: the first in Kansas, under which appellant’s assignor retained legal title, and Simpson acquired possession under the contract to pay, but no title as against the vendor. The second transaction, which took place in Idaho, involving Idaho residents with the property in Idaho should be governed by the Idaho law, the law of the situs of the second transaction, and under the Idaho law there is no requirement that such transaction be recorded to protect the title of a conditional vendor in farm machinery.
“The modern rule is that the law of the actual situs of the proeerty governs the validity of a transfer of movables.” 15 C.J.S. Conflict of Laws § 18 d. (1).
“Whether a conveyance of a chattel which is in due form and is made by a party who has capacity to convey it is in other respects valid, is determined by the law of the state where the chattel is at the time of the conveyance.” Restatement, Conflict of Laws § 257.
See also: United States F. & G. Co. v. Northwest Engineering Co., 146 Miss. 476, *513112 So. 580, 57 A.L.R. 530 (1927), Annot: 25 A.L.R. 1153, IIIc, at pg. 1168; 57 A.L.R. 535, IIIc at pg. 541; 148 A.L.R. IIIc at pg. 388.
In Van Ausdle Hoffman Piano Co. v. Jain, 39 Idaho 563, at 573, 228 P. 342, this court quoted from Knowles Loom Works v. Vacher, 57 N.J.L. 490, 493, 31 A. 306, 307, 33 L.R.A. 305-310, as follows:
“The situs of the property, and not the lex loci contractus, determines the validity of such sales. The contract in this case was made in New York, but the property was to be delivered, and was delivered, to and held by the purchaser, in this state. Great contention and uncertainty as to the title to personal property would be produced if purchasers and mortgagees were bound to ascertain whether the vendor or mortgagor acquired title in another state before they could contract with safety in reference to it. Judicial decision in this state has been hostile to such an interpretation of the law. Marvin Safe Co. v. Norton, 48 N.J.L. 410, 57 Am.Rep. 566 [7 Atl. 418], Where the situs of personal property is in this state, it is subject to our statutory provisions in the adjudications regarding it in our own courts, in a suit to which a citizen of this state is a party. (Citing authorities). ‘No one can seriously doubt that it is competent for any state to adopt such a rule in its own legislation, since it has perfect jurisdiction over all property, personal as well as real, within its own territorial limits. Nor can such a rule, made for the benefit of innocent purchasers and grantors, be deemed justly open to reproach of being founded in a narrow or a selfish policy.’ Story, Confl. L. § 390). It seems clear that the New Jersey statute must dominate this controversy.”
This court then quoted the case of Public Parks Amusement Co. v. Embree-McClean Carriage Co., 64 Ark. 29, 40 S.W. 582, as follows:
“Though a sale of chattels in Missouri, with reservation of title in the seller till payment of price, is void as to subsequent bona fide purchasers, unless evidenced by a writing, acknowledged and recorded, it is valid between the parties; and if the purchaser brings the property into Arkansas, and conveys it to a third person, the law of the latter state governs the conveyance, and such person acquires] no title as against the original seller, though the original contract was not recorded.”
The judgment in the instant cause should be reversed.
SMITH, J., concurs in dissent.