21 Ga. App. 16 | Ga. Ct. App. | 1917
Rehearing
It is contended by counsel for the plaintiff in error, both in their original brief and in their motion for rehearing, that the machinery involved in this suit was intended to be and actually was attached to land, thereby becoming fixtures, and that therefore the vendor of the machinery could not, by reason of having reserved title to it, recover it from the owner of the land,— the plaintiff in error, — which, without actual knowledge of such reservation of title, bought the land from the company to which the McRae Fertilizer Company, the lessor of the premises to the purchasers of the machinery, had sold the land. Section 6142 of the Civil Code of 1910 provides: “When a. party desires to review the judgment of the court in granting or refusing a new trial, the plaintiff in error shall specifically set out the errors complained of.” The only assignment of error which it would-seem, under any view, might be taken as covering the point here mentioned is the general ground, contained in the motion for a new trial, that the verdict is “contrary to law.” Under the rulings made by the Supreme Court, such an assignment presents nothing for the decision of the appellate court. Napier v. Burkett, 113 Ga. 607 (38 S. E. 941); Roberts v. Keeler, 111 Ga. 181 (36 S. E. 617). See also Civil Code (1910), § 6203; McKelvin v. State, 17 Ga. App. 413 (87 S. E. 150). But, apart from this, we do not think the evidence required the jury to find that the machinery had become a part of the realty. It is clear that such was not the intention of the vendor or his vendee, since by the terms of the sale the title to the machinery was to remain in the vendor until the purchase money was paid. The McRae Oil & Fertilizer Company, who the plaintiff in error contends was the owner of the land to which the machinery became affixed and was the lessor of the vendee of the machinery, became a party to this contract by its indorsement of the note. Section 3621 of the Civil Code of 1910. declares that “Anything intended to remain permanently in its place, though not actually attached to the land, such as a rail fence, is a part of the realty and passes with it. Machinery, not actually attached, but movable at pleasure, is not a part of the realty.” This provision of law does not, however, always provide a certain and easy test by which it can i be determined in-a given case whether or not the article in question remains personalty, or
Lead Opinion
Whether or not the defendant occupied the position of a bona fide purchaser, a duly recorded purchase-money note reserving title to personal property described as follows: “The following machinery sold to the undersigned by Continental Gin Company, viz.: 3 70 saw R. H. Winship plain gins; 3 70 saw class C feeders; 1 210 saw condenser with support and flues; 1 20 saw lint flue; 1 30 inch cylinder D. B. steam power press with transfer and feedings; 1 10 inch class C elevator as per contract; shafting, pulleys, and belting as per contract,” was sufficient to afford record notice to third persons of the fact that the title to the property was in the vendor, it also appearing that, following the contract of sale, the vendees took possession of the property, and that it remained in their hands and was operated by them for an entire ginning season. Thomas Furniture Co. v. T. & C. Furniture Co., 120 Ca. 879 (2) (48 S. E. 333); Charles v. Valdosta Foundry &c. Co., 4 Ga. App. 733 (62 S. E. 493). There is no provision 'of law requiring that such an instrument shall state the locality of the machinery or upon whose land it is located, nor need it specify the county of residence of the maker. The 'law requires that the contract shall be executed and attested in the same manner as mortgages on personal property, and recorded within thirty days from its date, in the county where the vendee resides, if a resident of this State, and provides that in other respects it shall be governed by the laws relating to the registration of mortgages. Civil Code (1910), §§ 3318, 3319, 3307, 3257.
Judgment affirmed.