7 Ga. App. 214 | Ga. Ct. App. | 1909
This was a suit in trover by Ellison & Chew against Wilson to recover possession of a horse. On the trial the plaintiffs, introduced the following instrument under which they claimed title to the horse: “State of Georgia, Jenkins County. Know all men by these presents: That I, Adam Mosely of above State and county, in consideration of the sum of one hundred and seventy-five dollars, advanced and to be advanced to me in provisions and supplies by Ellison & Chew, and to secure any balance on account or note that I may be due to said firm at any time, have bargained, sold, and delivered, and hereby doth bargain, sell and deliver unto, the said Ellison & Chew the following described property, to wit: one sorrel horse, one jersey one-horse wagon, seventy-five bushels, corn. To have and to hold the same unto the said Ellison & Chew, their heirs and assigns forever. And I do hereby warrant the title to said property unto said Ellison & Chew and their heirs against the claim or claims of all persons whomsoever. In addition to the. above bill of sale this day given by me to Ellison & Chew, and in addition to said advances, and for the purpose of better securing the same, I hereby agree and promise to make and deliver to said^Ellison & Chew a complete first mortgage on all of my crops of corn,, cottonseed, fodder, hay, peas, and all other produce to be grown by me during the present year on my one horse crop in the-district in said Jenkins county on the W. E. Eabitsch place adjoining lands of Dave Dickey estate, and other lands of W. E. Eabitsch, as soon as .said crops shall be up and growing. And should I fail
Witness: his
G-. O. Bragg,
Adam X Mosely. (L. S.)
W. R. Turner, K P. J. C.”
mark
The foregoing instrument was duly recorded. It was admitted that the horse in question was not delivered by the vendor into the possession of the vendees at the time of the execution of the instrument, but remained in the possession of the vendor. It is further admitted that the horse, when the suit was brought, was in the possession of the defendant, who, in some manner not disclosed by the evidence, obtained it from the party who executed the above instrument, after the instrument had been recorded. At the conclusion of the above evidence for the plaintiffs, the court, on motion of the defendant, granted a nonsuit on the ground that the instrument introduced as a bill of sale was a mortgage, as the property described therein, for which the suit was brought, was not actually delivered to the plaintiffs when the instrument was executed, and that they, therefore, did not have title to the property in question, and a suit in trover would not lie.
The instrument in question appears on its face to be a bill of sale; and if it had been accompanied with possession of the property described therein, its character could not have been changed by parol evidence. Civil Code, of 1895, §2725. It being admitted, however, that the property described in- the instrument remained in the possession of the maker thereof after its execution, the es
Judgment reversed.