
    CHONG YET YOU AND CHEW SAI, ALIAS SAM KEE v. CHARLES H. ROSE.
    No. 921.
    Exceptions prom Circuit Court, First Circuit.
    Hon. T. B. Stuart, Judge.
    Submitted March 24, 1916.
    Decided April 3, 1916.
    Robertson, C.J., Watson and Quarles, JJ.
    
      Statutes — construction—reason and spirit — implication.
    In case of incompleteness or ambiguity of expression tbe reason and spirit of tbe statute should be considered. That which is necessarily or plainly implied in a statute is as much a part of it as that which is expressed.
    
      Sales — fraudulent conveyances — retention of possession hy vendor.
    
    Under Sec. 3120, R. L. 1915, a sale of personal property is void as to creditors of the vendor where there is no delivery and change of possession of the property, and the evidence of the sale is not recorded.
    
      Replevin- — attached property.
    
    It is a good defense to an action of replevin against a sheriff that he holds the property by virtue of a valid writ of attachment against a third party who is the real owner.
   OPINION OF THE COURT BY

ROBERTSON, C. J.

This is an action of replevin in which the defendant obtained judgment in the circuit court, jury waived, and is brought to this court upon the plaintiffs’ exceptions to the decision and the overruling of their motion for a new trial. The case was tried upon agreed facts. The plaintiffs purchased a refrigerator from one Fong Lan on September 13, 1915; at the request of the vendor, acceded to by the vendee, the refrigerator was to remain in the possession of the former for a few days; a bill of sale was executed but not recorded; and on September 14, the defendant, as sheriff of Honolulu, took the refrigerator from the possession of Fong Lan under a writ of attachment issued in an action of assumpsit brought against Fong Lan by another, the -validity of which writ has not been questioned. The plaintiffs contend that the decision of the circuit court was contrary to the law and the facts.

Section 3120 of the Revised Laws, 1915, provides that “Every mortgage or other conveyance of personal property, not accompanied by immediate possession and followed by an actual and continued change of possession of the things mortgaged or conveyed, shall be void as against creditors of the mortgagor, and as against subsequent purchasers or mortgagees, in good faith and' for a valuable consideration, unless such mortgage or other conveyance shall be recorded in the office of the registrar of conveyances.” ' By section ■2381 of the Revised Laws of 1905, it was provided that chattel mortgages, as well as certain other ■ instruments, in order to bind third parties to their detriment, should be recorded in the office of the registrar of conveyances. (R. L. 1915,,Sec. 3119.) Bills of sale were not included. In 1911 the legislature amended that section by eliminating reference to chattel mortgages and enacted a new section which has become section 3120 of the last revision as above quoted. (S. L. 1911, Chap. 20.) The evident intent of the legislature was to put chattel mortgages and bills of sale upon the same footing and to require their recordation unless there was an' actual and continued change of possession of the property mortgaged or sold, by way of protection against fraud upon creditors and subsequent mortgagees of, and bona fide purchasers from, the vendor or mortgagor, as the case might be. Has the intention been sufficiently expressed? The statute- says “shall be void against creditors of the mortgagor.” What as to the creditors of the vendor? The statute also says “as against subsequent purchasers or mortgagees” without mentioning from or of whom. Here, by necessary implication to avoid absurdity and incongruity, the words “from or of the vendor or mortgagor” are to be implied. And we think by like implication, and in order to carry out the manifest intent of the legislature, creditors of a vendor must be held to be equally protected with creditors of a mortgagor though they are not expressly mentioned. If the words “of the mortgagor” did not appear there would be very little difficulty, and we think the presence of those words should not change the construction. Statutes designed to protect creditors against fraud are liberally construed. 20 Cyc. 344. The intention of the legislature is to be looked for first in the language used in the statute,' and unless that language, if taken literally, would lead to injustice, inconvenience, repugnancy or absurdity, it will be given its ordinary meaning and usual effect. In re Inter-Island Steam Nav. Co., 21 Haw. 6; Lake County v. Rollins, 130 U. S. 662, 670. But in case of incompleteness or ambiguity of expression the reason and spirit of the statute and the cause which induced the legislature to enact it should be considered in interpreting it. R. L. 1915, Sec. 12; Shaw v. Boyd, 19 Haw. 83. And in this connection the rule is that whatever is necessarily or plainly implied in a statute-is as much a part of it as that which is expressed. 36 Cyc. 1112; Telegraph Co. v. Eyser, 19 Wall. 419, 427; Hill v. American Surety Co., 200 U. S. 197, 203; Gilbert v. Craddock, 67 Kan. 346; State v. Phelps, 144 Wis. 1, 8; State v. Blair, 235 Mo. 680, 697. This has been assumed to be the rule in a number of cases in this jurisdiction. In the case of In re Lightfoot, 22 Haw. 293, 297, this court said “Statutory construction permits the implication of words apparently intended for the purpose of upholding and giving-force to the legislative will, but does not authorize the interpolation of conditions into a statute — additional terms — not found in the statute considered as a whole.” See Territory v. Palai, ante p. 133. There is a difference between drawing plain inferences and making necessary implications, based on the context, reason and spirit of an act, on the one hand, and supplying material omissions and interpolating additional provisions, on the other. One is permissible, the other not.

/. T. DeBolt for plaintiffs.

/. Lightfoot for defendant.

We hold, therefore, that though as between the parties to the transaction, delivery of personal property is not necessary in order to pass title upon a sale of the property, yet under the statute a sale not accompanied with delivery and followed by a continued change of possession of the property is void as to creditors of as well as subsequent bona fide purchasers from the vendor unless the evidence of the sale be put of record. See Prather v. Parker, 24 Ia. 26; Smith v. Champney, 50 Ia. 174. The contention of plaintiffs’ counsel that the defendant was a mere trespasser and unable to justify under the writ is based on the mistaken view that the refrigerator belonged to the plaintiffs as against all persons.- “It is a good defense to an action of replevin that the property was taken by the defendant by virtue of a writ of attachment in his hands as sheriff against a third party who is the real owner.” Cobbey on Replevin, Sec. 804. The cases of Wright v. Brown, 11 Haw 401, and Lazarus v. Carter, id. 541, cited in the plaintiffs’ brief, are not at all in point because, among other reasons, they were decided before the passage of the act of 1911 above referred to.

The exceptions are overruled.  