This is a suit in the nature of replevin to recover certain specific personal property described in. the petition, and known as the “thresher outfit.” Defendant obtained judgment, from which the plaintiff has. appealed. The facts are-as follows :
In July, 1876, plaintiff sold to J. W. Edwards, W. L. Edwards, and P. H. Edwards, the thresher outfit, for which they executed two notes for two hundred and ten dollars each, one of them payable on the first of November, 1876, and the other on the first day of October,-1877, in both of which notes it was expressly provided that the title or ownership of the property should not pass from the plaintiff until the property was fully paid for; that soon after the maturity of the first note, defendants made a payment of one hundred and fifty dol*551lars thereon; that on the twenty-second of January, 1878, about three months after the maturity of the second note, suit was brought on both notes in the Newton county circuit court, and judgment obtained for the bal- • anee due in February, 1879, against two of the Edwards (one of them, W. L. Edwards, not being served); that execution issued on the judgment and was returned to the February term, 1880, not satisfied; that this suit was begun on the twelfth day of July, 1880, against def end- . ant Culp, who, in the last of June or first of July, 1879, bought the property of J. W. Edwards, paying therefor one hundred and fifty dollars in cash, and executing his note for one hundred dollars; that defendant, so far as the record shows, had no knowledge or notice of plaintiff's claim.
On this state of facts, the court refused instructions asked by plaintiff, to the effect that under the conditions of the sale plaintiff was entitled to recover, although the jury might believe that defendant was a purchaser without notice of plaintiff’s claim, and gave the following :
“The court instructs the jury that although the plaintiff made a conditional sale of the machine to J. W. Edwards and others, and it was provided in the note given for the purchase price of the machine that the ownership thereof should remain in plaintiff until the said machine was paid, for; yet, if said note became due in 1876, and said machine was allowed to remain in possession of Edwards long after the maturity of said note, - and was never taken out of their possession, and if the defendant, in the year 1879, bought said machine in good faith of the Edwards and paid a valuable consideration therefor without any notice of plaintiff’s claim, then plaintiff cannot recover in this action.”
It is established by the following authorities that where there is a sale and delivery to the vendee of personal property, on the condition that the title is to re*552main in the vendor until the purchase price is paid, until this price is so paid the title does not pass to the vendee, and in the event of its non-payment, the vendor may recover possession of the property either of his vendee or of a bona fide purchaser from such vendee without notice of such condition, if guilty of no laches : 36 Mo. 479 ; 44 Mo. 412; 52 Mo. 24; 70 Mo. 659 ; 71 Mo. 121. As to what will amount to such laches as will prevent the vendor from asserting his right against an innocent purchaser, we have been unable to find any rule laid down, and the question has been determined in the cases which have fallen under our observation by the facts and circumstances attending the particular case. Looking at the case before us in the light of the facts we cannot impute such laches to the plaintiff. His rights under the contract were to have the purchase price agreed to be paid, and in the event of non-payment, to recover the property sold. As no voluntary payment, except fifty dollars, had been made by the vendees, plaintiff, as was his right, within three months after the maturity of the last note, instituted his suit on both notes, the writ being returnable to the first term of the Newton county circuit court held after the right of action accrued, obtained judgment, issued execution, which was returned February, 1880, not satisfied. It thus appearing that the vendees did not voluntarily pay the purchase price, and that its payment could not be enforced by legal process, this suit was instituted, the writ of summons being returnable to the first term of the circuit court to be held after the execution was returned unsatisfied. As plaintiff availed himself of the remedies he was entitled to under his contract at the earliest time practicable after his rights accrued; we cannot impute to him such laches as forbids a recovery in this suit.
The decision in the case of Robbins v. Phillips, 68 Mo. 101, to which we have been cited by counsel,' was put upon the express ground that the vendor, by accept*553ing a note without security, in fulfillment of the contract of sale made six months before suing, recovering judgment thereon and levying the execution on the horse sold as the property of the vendee and defendant in the execution, amounted to an abandonment and waiver of his right under the contract of sale as originally made. The doctrine invoked by defendant’s counsel that a note or bond, when reduced to judgment, is merged in the judgment, has no application to the facts in this case. Section 2505, Revised Statutes, has no application to the facts in this case, inasmuch as the rights of plaintiff accrued under a contract made prior to its enactment.
For the error committed in giving the instruction herein quoted, and in refusing to give those of plaintiff referred to, the judgment is reversed and the cause remanded.
All concur.