General Motors Acceptance Corp. v. Monday

54 S.E.2d 479 | Ga. Ct. App. | 1949

1. The registration of conditional bills of sale is controlled by the laws relating to the registration of mortgages on personal property. See Code, §§ 67-1403, 67-108.

2. That part of Code § 67-108 relating to "other personal property," contained in the provision that, "All chattel mortgages of stocks of goods, wares, and merchandise, or other personal property [italics ours], shall be recorded, in case the same is upon property or goods located in some other county than that of the mortgagor's residence, in the county where said personal property is located at the time of the execution of said mortgage, in addition to the record of said mortgage in the county of the mortgagor's residence," must be construed in accordance with the doctrine of ejusdem generis. This statute, in specifically referring to stocks of goods, wares, and merchandise, contemplates a situation where a person may live in one county and possess such property located in another county, as a merchant, or similar tradesman, who may live in one county and operate a store, or other business in another county. A chattel mortgage on property thus kept must be recorded in the county of the mortgagor's residence as well as the county where the property is located at the time of its execution. Accordingly, the automobile in the instant case, which was kept most of the time in the county where the property was located at the time of the execution of the conditional bill of sale, rather than in the county of the residence of the mortgagor, was not ejusdem generis with stocks of goods, wares, and merchandise, it not appearing that the mortgagor was engaged in the business of keeping or storing automobiles in the county where this automobile was located when the conditional bill of sale was executed, or elsewhere. See Sanders v. State, 86 Ga. 717 (12 S.E. 1058); Fleming v. Rome, 130 Ga. 383 (61 S.E. 5); Beavers v. LeSueur, 188 Ga. 393 (3 S.E.2d 667). Under Code § 67-108 this conditional bill of sale needed only to be recorded in the county of the mortgagor's residence to constitute constructive notice of its existence.

3. The place where a person engaged in the military service of this country is stationed is not necessarily his residence, since residence is controlled by the intention of such person, rather than the intention of the military authorities. See 3 Bouvier's Law Dictionary, p. 2920; Commercial Bank of Crawford v. Pharr, 75 Ga. App. 364 (43 S.E.2d 439).

It follows that the trial court erred in holding the property not subject to the mortgage fi. fa.

Judgment reversed. MacIntyre, P. J., and Gardner, J.,concur.

DECIDED JUNE 10, 1949. REHEARING DENIED JULY 12, 1949. The plaintiff in error, General Motors Acceptance Corporation, commenced proceedings to foreclose a conditional bill of sale on a certain automobile which had been sold to William C. Singletary and on which there was a balance due in the principal sum of $1400. The mortgage fi. fa. was levied on the automobile, and the defendant in error, Fine Monday Jr., interposed a claim. The case was tried in the City Court of Albany on an agreed statement of facts, as follows: "William C. Singletary, Private First Class in the United States Army was stationed at Turner Air Base within Dougherty County, Georgia, on the 21st day of November, 1947, and continued in said assignment and was stationed there on the 1st day of March, 1948, when he purchased a used 1946 Oldsmobile from Sommerville-Bailes Oldsmobile Inc. (the automobile in question) at their place of business in Albany, Georgia. The contract in question shows the mailing address of Singletary at the time of his purchase of the automobile to be Turner Air Base, Georgia. The said William C. Singletary's legal residence was at the date of his enlistment in the Army and has since that date and at all times been in Grady County, Georgia. The said automobile was kept and located by the said Singletary immediately subsequently to its purchase, and at all times, by him at his barracks at Turner Air Base, Georgia, except that he used the same for occasional week-end visits to his family in Grady County, Georgia, up to and until the 25th day of March, 1948, when said automobile was sold by him to the claimant in this case, Sergeant Fine Monday, who was a soldier at Turner Air Base, Georgia. . . It is agreed that the . . contract . . was recorded in the office of the Clerk of the Superior Court of Grady County on March 19, 1948, and that neither of said contracts was recorded in Dougherty County, Georgia.

"William C. Singletary was stationed at Turner Air Base, Georgia, subject to Army orders and subject to transfer at any time. William C. Singletary was transferred from Turner Air Base, Georgia, on April 9, 1948.

"Sergeant Fine Monday did not know from whom Singletary purchased the automobile and upon inquiry was informed by Singletary that the title was clear, and Monday acted in good faith and did not know of any claim against said automobile until just prior to the mortgage-foreclosure proceedings had in this case.

"Monday gave William C. Singletary a Buick automobile of the approximate value of $1250 and also the sum of $1038 in cash for the purchase of said automobile, taking from him a bill of sale in writing."

The trial judge entered a judgment finding the property not subject to the fi. fa., and this judgment is assigned as error.