161 Ga. 371 | Ga. | 1925
Lead Opinion
1. “In an action of trover tlie issue is one of title, and not of debt. . . The sole issue in tlie trial of an action of trover is that of title to tlie property in dispute; and the fact that the plaintiff may elect to take a money verdict in lieu of the specific personalty claimed can in no event alter that issue.” Berry v. Jackson, 115 Ga. 196, 197 (41 S. E. 698, 90 Am. St. R. 102). “That money verdict is damages in lieu of property, but the title to the property is the issue, and the measure of the damages is its value.” Campbell v. Trunnell, 67 Ga. 518, 520; Harden v. Lang, 110 Ga. 392, 396 (36 S. E. 100).
2. The vendor in a conditional sale evidenced by writing is not a mere lienor. He stands in the position of an absolute owner of the property, and when such property is delivered to a trustee in bankruptcy, the latter possesses no greater interest, nor has any better title thereto, than the bankrupt had, and the rule of caveat emptor obtains in this case as in other judicial sales. Myrick v. Liquid Carbonic Co., 137 Ga. 154, 156 (73 S. E. 7, 38 L. R. A. (N. S.) 554).
3. Assuming that the trover suit in this case was based upon facts which would authorize the recovery thereunder of the property, we answer that the plaintiff in such a suit can obtain a money judgment as against the vendor for the value of the property, against a plea of discharge in bankruptcy.
4. Where one executes a bill of sale of personal property to another, and thereafter, while title remains in the latter, delivers such property to a trustee in bankruptcy, under the facts set forth in the question fol
Dissenting Opinion
dissenting. As originally enacted, § 17 of the bankruptcy act provided: “A discharge in bankruptcy shall release a bankrupt from all his provable debts, except such as . . (2) are judgments in actions for frauds, or obtaining property by false pretenses or false representations, or for willful and malicious injuries to the person or property of another; . . . (4) were created by his fraud, embezzlement, misappropriation, or defalcation while acting as an officer or in any fiduciary capacity.” This was amended by act of February 5, 1903, so as to read: “A discharge in bankruptcy shall release a bankrupt from all his provable debts, except such as . . (2) are liabilities for obtaining property by false pretenses or false representations, or for willful and malicious injuries to the person or property of another, or for alimony due or to become due, or for maintenance or support of wife or child, or for seduction of an unmarried female, or for criminal conversation; . . or (4) were created by his fraud, embezzlement, misappropriation, or defalcation while acting as an officer or in any fiduciary capacit3r.” Applying this law to the facts stated in the question propounded by the Court of Appeals, the debtor’s discharge in bankruptcy would pre