(dissenting).
I respectfully dissent, since the majority opinion overrules Pugh v. Stratton.1 In the Pugh case the vendees of certain livestock urged that they had acquired title to the cattle under Sec. 70A-2-401(2), U.C. A.19S3. On the other hand, the vendor claimed that he had retained ownership of the livestock and was entitled to possession because the Utah Livestock Brand and Anti-Theft Act, Title 4, Chap. 13, provides the exclusive method for the transfer of ownership of cattle. Sec. 4-13-17, U.C.A. 1953 provides:
Upon the sale, consignment, alienation or transfer of title of any livestock, by any -person in this state, the actual delivery of such animals shall be accompanied by a zvritlen bill of sale from the vendor or the party selling to the party purchasing . . . . [Emphasis added.]
This court cited Sec. 70A-2-102, U.C.A. 1953:
. nor does this chapter [Sales] impair or repeal any statute regulating sales to consumers, farmers or other specified classes of buyers.
Based on the foregoing provision, this court concluded that Title 4, Chap. 13, regulated livestock sales, and a transfer of title is valid only if effected in conformity with Sec. 4-13-17, U.C.A.1953. This court further deemed the possession of anyone as unlawful who takes delivery in violation of Sec. 4-13-17.
The majority opinion attempts to avert the consequences of Pugh v. Stratton by resorting to 70A-9-102(3), which provides:
The application of this chapter to a.security interest in a secured obligation is not affected by the fact that the obligation is itself secured by a transaction or interest to which this chapter does not apply.
The foregoing provision does not dispose of the issue that the vendee must acquire some type of interest upon which to execute a chattel mortgage. The majority opinion states that the vendor transferred physical possession to the vendee, but un*441der Pugh v. Stratton, this was not lawful possession.
By necessity the vendee must depend upon Sec. 70A-2-401(2), U.C.A.1953:
Unless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods, despite any reservation of a security interest and even though a document of title is to be delivered at a different time or place;
In the instant action, the defendant bank contends that it has priority by its earlier filing than the vendors, who have only a security interest in the livestock. If it were not for Title 4, Chap. 13, this assertion would be proper. Section 70A-9-113, U.C.A.1953 provides:
A security interest arising solely under the chapter on Sales (chapter 2) is subject to the provisions of this chapter except that to the extent that and so long as the debtor does not have or does not lawfully obtain possession of the goods
(a) no security agreement is necessary to make the security interest enforceable; and
(b) no filing is required to perfect the security interest; and
(c) the rights of the secured party on default by the debtor are governed by the chapter on Sales (chapter 2).
Under Pugh v. Stratton, the debtor-vendee did not lawfully obtain possession of the cattle from their conditional vendors; therefore, under Sec. 70A-9-113, the vendors were not required to file to perfect their security interest. Under such circumstances, I cannot agree that the subsequent chattel mortgagee, the bank, has attained a position of priority.
I am cognizant of the impediments to commercial transactions as urged by the Utah Bankers in their amicus curiae brief. The solution to this problem is a legislative matter which should be resolved by that branch of government.2
HENRIOD, J., concurs in the views expressed in the dissenting opinion of CAL-LISTER, C. J.. 22 Utah 2d 190, 450 P.2d 463 (1969).
. The legislative response to Pugh v. Strat-ton appears to he reflected in an amendment to Title 14, Chap. 13, wherein rather than amending Sec. 4-13-17, they strengthened the act by Sec. 4-13-17.5 in 1971. This new section provides: “All changes of ownership through private sales or transactions, or at public auctions or commission houses, shall be accompanied by a brand inspection certificate.”