(after stating the facts). Counsel for the defendant rely on section 6869 of Kirby’s Digest to sustain the judgment of the court. It is as follows:
“In any action in a justice court, or circuit court of this State, where it is attempted to foreclose any mortgage, deed of trust, or to replevy, under such mortgage, deed of trust or other instrument, any personal property, the defendant or defendants in said action shall have the right to prove or show any payment or payments or set-off under such said mortgage, deed of trust or other instrument, and judgment shall be rendered for the property or the balance due thereon, and the defendant may pay the judgment for the balance due and costs within ten days, and satisfy the judgment, and retain the property. ”
They contend that the words “or other instrument” embrace contracts where the seller retains title to the property until the payment of the purchase money; and that where the buyer has paid a part of the purchase price, he has an equity in the property for the amount he has paid on it, and is entitled to preserve this equity by the payment of the balance of the purchase price in cases where the seller has exercised his option to regain possession of the property for a failure of performance of the conditions of the contract by the buyer.
We do not decide whether or not the words “or other instrument” include contracts where the seller has retained title to the property until the purchase money is paid; for we are of the opinion that in giving the statute the construction contended for by counsel for the defendants the judgment of the court was wrong.
“The principle is well established that the seller of personal property who has reserved title until the purchase price is paid may, upon default of payment, retake the property, and thereby cancel the debt, or he may sue to recover the debt, and thereby affirm the sale, in which case he looks to the debtor and not to the property; in the other case he looks to the property and not to the debtor. ” Bell v. Old, 88 Ark. 99.
He also has the right to hold the property until the purchase money is paid. Hendrickson Lumber Co. v. Pretorious, 82 Ark. 347.
In the cáse before us it is conceded that the defendants made default in the payment of the purchase money, and after default was made refused to deliver possession of the piano to the plaintiff. The latter, therefore, had the right to replevy the piano and hold possession of it until the price was paid.
There is some conflict in the authorities on the right of the seller, retaining title to the property until the payment of the purchase money, to recover the amount unpaid where the property has been destroyed without fault of the vendee; but the decided weight is in favor of the seller’s right to recover, and this court has so decided. Phillips v. Hollenberg Music Co., 82 Ark. 9.
The contract in question imposed upon the defendant, Lusby, an absolute obligation to pay the purchase price. When default in payment was made, even under the construction placed upon the act in question by the defendant, the plaintiff had the right to retake the property, and hold it until payment was made. If, then, its possession was not wrongful, it is difficult to perceive upon what principle of reason and justice he should be held liable for the destruction of the piano, which occurred without fault on his part.
Counsel have not cited us to any case where the precise question involved has been decided, and after a careful search", we have been unable to find one. But in the case of Whitlock v. Auburn Lumber Co., 12 L. R. A. (N. C.) p. 1214, the Supreme Court of North Carolina held that where property is sold upon condition that title shall remain in the seller until the price is paid, and is retained in the seller’s possession subject to the buyer’s order, the loss in case of its accidental destruction will fall on the buyer.
The court said: “It is familiar learning, and such an elementary and just principle as to have become axiomatic, that one party will not be permitted to plead his own act or fault which has prevented the performance of a contract by the other party, in order to defeat the latter’s recovery thereon. It is just a simple application of the maxim that no man will be allowed to take advantage of his own wrong; and the* doctrine has been strikingly illustrated in its application to cases analogous to this one.”
Giving the act the construction contended for by counsel for the defendants, the plaintiff, being rightfully in the possession of the piano, would at least have the right to hold it as security until the balance of the purchase price was paid. The situation of the plaintiff then would' be analogous to that of a mortgagee or pawnee in possession after default made by the mortgagor or pawnor.
In the case of Covell v. Dolloff, 31 Me. 104, the court said: “The mortgagee of personal property, in possession after condition broken, and while the right of redemption exists, is responsible for ordinary diligence in the management and preservation of the property, and is liable for ordinary neglect. In this respect his duties and responsibilities are similar to those of a pawnee. If the property be destroyed without fault on his part, he cannot, while thus holding it as security for his debt, be held to account for it. ” See also Morrow v. Turney’s Admr., 35 Ala. 131.
By analogy, we hold that the plaintiff, being rightfully in possession of the piano after condition broken by default in the payment of the purchase money by the defendants, was bound only to ordinary diligence for the preservation of it, and should not bear the loss of the piano, which it is conceded was accidentally destroyed by fire.
For the error indicated in the opinion, the judgment will be reversed, and the cause remanded for a new trial.
Kirby, J., dissents.