This is an action in conversion to recover the value of an automobile which the defendant sheriff attached and sold as the property of K.L. Carlson. Respondent sold the automobile to Carlson in March, 1927, upon condition that he would pay for the car in monthly installments, and that the car should be the property of respondent until fully paid for. The automobile was registered in the office of the secretary of state in the name of respondent. At the time of the attachment, March 24, 1928, Carlson was in arrears with his payments. Respondent had exercised forbearance, but had not extended time for payment to any definite or fixed date, and had not taken the car into his possession as he had a right to do under the contract. Carlson was an employee of respondent, and on the date of the attachment had driven the car to his place of employment and had parked it on the lot of respondent. Immediately upon learning of the attachment respondent called at the office of the sheriff and claimed the car as his own. The sheriff asked him the amount remaining unpaid and was informed the amount was between $27 and $28. No tender *Page 570 of this or any other sum was made, but instead respondent was told to file his claim with the sheriff, and that he (the sheriff) would request that it be paid. Later conversation was had by respondent with the attaching creditor and with the attorney for the attaching creditor, but at no time was any lawful tender made respondent of the full amount due him. The sheriff sold the automobile to satisfy judgment in the action ofRasmussen v. Carlson. Thereafter this action was commenced to recover the value of the car. The sum of $27 was tendered into court in this action to satisfy the claim of respondent, but such sum was refused. The case was tried to a jury. At the close of the evidence appellant and respondent each requested the court to direct a verdict in his favor. The court directed a verdict in favor of respondent for the market value of the car at the time it was taken on attachment.
It was and is the contention of respondent that the sheriff was a wrongdoer in taking manual possession of the car under the writ of attachment; that Carlson's interest or equity in the car should have been reached, under our statute, by serving respondent with the writ as in the nature of 1 garnishment. This theory was adopted by the trial court. Appellant insists that he followed the statute in levying the attachment since the property was capable of manual delivery, and was, in contemplation of law, in possession of Carlson. He further alleges that respondent was, on April 3, 1928, tendered $27, the amount alleged to be his interest in the car.
We cannot approve the theory of respondent that Carlson's interest could be reached by serving respondent with the writ as in garnishment. The car was in possession of Carlson under his contract to purchase. The fact that the auto was parked on vendor's lot is immaterial. Notwithstanding this, 2-4 respondent must prevail. It is well settled in this state that a conditional contract is valid between the parties, and, in the absence of fraud, as to third parties, and, when so provided therein, *Page 571 gives to the vendor the right to immediate possession of the property on default of any of its conditions. Russell v.Harkness, 4 Utah 197, 7 P. 865; Lima Machine Works v.Parsons, 10 Utah 105, 37 P. 244; Lippincott v. Rich,19 Utah 140, 56 P. 806; Id., 22 Utah, 196, 61 P. 526; FreedFurniture Carpet Co. v. Sorensen, 28 Utah 419, 79 P. 564, 107 Am. St. Rep. 731, 3 Ann.Cas. 634. Creditors of the vendee can obtain no interest in the property by attachment adverse to the rights of the vendor. Passow v. Emery, 37 Utah 49,106 P. 935. In the last-cited case the question under what circumstances an attaching creditor may satisfy the vendor and thereby subject the vendee's interest to attachment was reserved and not decided.
At the time plaintiff demanded possession of the property from the sheriff he was entitled to its possession, not only because of delinquency in payment, but because of the attachment, one of the conditions of the contract of sale being that the vendee should not permit the car to be removed from his possession nor to be attached. King v. Cline, 49 Cal. App. 696, 194 P. 290;McArthur v. Beals, 243 Mass. 449, 137 N.E. 697; Starr v.Govatos (Del.Super.) 130 A. 392. The vendor, upon demand, was entitled to the possession of the automobile after condition of the contract of sale was broken. Lippincott v. Rich, supra;Passow v. Emery, supra.
Title to the auto was in respondent at the time it was taken on attachment by the sheriff. Appellant was charged with notice of this fact because the car was registered 5 in respondent's name as owner in the office of the secretary of state. The amount due had neither been paid nor tendered.
The majority rule seems to be that the buyer under a conditional sale contract has no such interest in the property before the purchase price is paid as is subject to levy and sale at the instance of his creditors. Especially is this true where the buyer is in arrears with his payments. 6 Estrich, Installment Sales, § 480, p. 902; *Page 572 61 A.L.R. 782, note: Franklin Motor Co. v. Hamilton, 113 Me. 63,92 A. 1001; Buckmaster v. Smith, 22 Vt. 203. However, in some jurisdictions it is regarded that the interest of the buyer should be subject to his debts. The levying creditor has the right to pay the balance due on the contract to the vendor, thus terminating the seller's rights and rendering the property subject to attachment or execution. 61 A.L.R. 792. We think this the better rule. It applies when attachment is levied before the buyer is in default, and in some instances where the buyer is delinquent, when payment is promptly tendered to the vendor.Nevada Motor Co. v. Bream (Nev.) 269 P. 602, 61 A.L.R. 776; 1 Williston, Sales (2d Ed.) § 326; Newhall v. Kingsbury,131 Mass. 445; Frank v. Batten, 49 Hun, 91, 1 N.Y.S. 705;Hervey v. Dimond, 67 N.H. 342, 39 A. 331, 68 Am. St. Rep. 673;King v. Cline, supra.
The evidence fails to show seasonable or adequate compliance with these requirements. The vendor has not been paid either the balance due on the contract or the money expended by him in placing a battery in the car and replacing the top. While both the sheriff and the attaching creditor told 7 the vendor that payment would be made, no lawful tender was ever made of the whole amount due. The vendor at no time said he would not accept the amount due if tendered. It could not necessarily be implied from his conduct that he would refuse had tender been promptly made. He, however, insisted at all times that he was the owner of the car and entitled to its possession. The sum of $27 was tendered into court in the present case, but it is clear from the evidence that this sum was not all that was owing including the battery and top. Nor was the tender timely made. The wrongful seizure and sale of the property by the sheriff amounted to a conversion thereof. Larsen v. Ryan,54 Utah 250, 180 P. 178; 26 R.C.L. 1130.
Appellant contends that, if respondent is entitled to judgment as for conversion, then the judgment should have been *Page 573 for the amount due the vendor under the contract only. It is the general rule, in conversion, that the measure of damages is the market value of the property at the time 8-10 and place of conversion with interest from that date,Larsen v. Ryan, supra; Madsen v. Madsen (Utah)269 P. 132; Whittler v. Sharp, 43 Utah 419, 135 P. 112, 49 L.R.A. (N.S.) 931; King v. Cline, supra; Brown v. Haynes, 52 Me. 578;Western Bond Mortgage Co. v. Chester, 145 Wash. 81,259 P. 13; Twentieth Century M. Co. v. Excelsior Springs M.Co., 273 Mo. 142, 200 S.W. 1079; 38 Cyc. 2092, and without deduction for partial payments, Brown v. Haynes, supra;Duncan v. Stone, 45 Vt. 118. There are cases where the interest falls short of full ownership, where recovery has been restricted to actual damages suffered. This seems to be permitted only in cases where the question of liability comes up as between a general and a special owner and is not recognized in actions against a stranger. 1 Street, Foundation of Legal Liability, 255. As to a stranger who has neither title nor right of possession, plaintiff may recover full market value. 38 Cyc. 2089. In the case of Meister Sons Co. v. Harrison, 56 Cal. App. 679,206 P. 106, it was held that a seller who reserved title with right to retain installments paid in event of buyer's default, in an action for possession of the property or its value against third parties who, with notice of seller's rights, took possession after buyer's default, could recover the full value of the goods without deduction of the amount the buyer had paid. This was said to be pursuant to section 667 of the Code of Civil Procedure. That section is identical with Comp. Laws Utah 1917, § 6864. Here respondent chose, as he had a right to do, to bring his action for the value rather than to seek recovery of the property from the person to whom it had been sold and delivered.
JUDGMENT AFFIRMED, with costs to respondent.
CHERRY, C.J., and EPHRAIM HANSON, J., concur. *Page 574