99 Ga. 752 | Ga. | 1896
An execution in favor of the Patapsco Guano Co. against Gouch, founded on a judgment rendered February 9, 1895, was, on October 15 of that year, levied upon a mule, which was claimed by JIarp. The issue thus made was tried in a .justice’s court before a jury, who found the property subject. The claimant thereupon took the case by certiorari to the superior court, alleging that the verdict was contrary to law and to evidence. The certiorari was overruled, and he excepted. From the evidence as set forth in the magistrate’s answer, it appears that Gouch bought the mule from Harp in January, 1895, under a parol contract, by the terms of which the title was to remain in Harp until the mule was paid for, and the mule was immediately delivered to Gouch in pursuance of this contract. So far as can be gathered from the answer to the certiorari, the trade between Harp and Gouch was complete when the delivery of the mule took place. It does appear, as an independent fact, that Gouch subsequently executed and delivered to Harp a promissory note for the purchase money of the mule, reciting that Harp had reserved the title, and it' also
Under the facts as set out in the magistrate’s answer,., which must control our decision in the case, it seems clear that the -contract of sale between Harp -and Gouch was final and complete on the day the latter took the mule into-his possession, without reference to the subsequent -execution and delivery of the note and mortgage. In this view, it is obvious that the parol reservation of title in Harp amounted to nothing, as affecting the rights of third persons. Section 1955(a) of the code distinctly declares that, in order to render any such reservation of title effectual as against third persons, the contract must be reduced to writing, and attested as a mortgage on personalty. It follows that the lien 'of -tire plaintiff’s judgment immediately upon its rendition attached to the mule as the property of Gouch, such judgment having been obtained at a time when the-contract of conditional sale rested merely in parol, and after actual delivery of the mule to Gouch had taken place. This being so, the judgment lien could not be divested, either by the'subsequent giving of the note and mortgage, or by any attempted rescission of the contract of sale after-wards agreed upon between the parties. See Derrick v. Pierce, 94 Ga. 466.
It is proper in this connection to refer to the case of Wiggins v. Tumlin, 96 Ga. 753, — although it is not cited or relied upon by counsel for the plaintiff in error, — in order that what is said above may not be understood as being • in conflict with the ruling there made. It appeared in that case that “the owner of personal property delivered the same to another m trial <md for use, with the understanding that if the property suited the latter, the parties would
Moreover, even were the sale treated as incomplete until the giving of the purchaser’s note, the claimant would be in no better position than if the contract had never in fact been reduced to writing; for though the note given for the purchase money of the mule did recite' that the seller reserved title, it does not appear that this instrument was attested. If not, it was entirely ineffectual to defeat the lien of the guano company’s judgment. It will have been observed that the statute provides, not merely that a contract
Our conclusion, therefore, is: tbat in any view of tbe case, tbe property should have been found subject, and tbe •certiorari was properly overruled. Judgment affirmed.