59 Ga. App. 336 | Ga. Ct. App. | 1939
In a certiorari proceeding the judge of the superior court affirmed the judgment of a justice of the peace finding certain automobile casings and tubes subject to the fi. fa. of Southern Auto Stores and against the claim of Ivey's Inc.; and the exception is to this judgment.
It appears from the petition for certiorari that counsel for Southern Auto Stores and Ivey's Inc. entered into an agreed statement' of facts which is substantially as follows: On June 14, 1937, Ivey’s Inc., claimant, sold to Eli Smith an automobile under a retention-of-title contract retaining title to the car in the seller until it was paid for, and providing that “if purchaser default in complying with terms hereof . . • , seller . . may take immediate possession of said property without demand . . ., including any equipment or accessories thereto.” Said contract was filed for record on June 15, 1937, and was duly recorded. On June 16, 1937, Southern Auto Stores sold Eli Smith certain automobile casings and tubes under a retention-of-title contract retaining title to the property in the seller until it was paid for. This contract was signed by Smith and duly witnessed, but was never recorded. “Said casings and tubes were subsequently installed on the said . . automobile.” Neither the purchase-price of said automobile
In its petition for certiorari the plaintiff in error contends that when “Southern Auto Stores allowed the casings [and tubes] to become attached” to the automobile to which Ivey’s Inc. held a recorded retention-of-title contract, under the law of accession, “said tires [and tubes] became the property of Ivey’s Inc. until said retention-of-title contract had been paid by the defendant, Eli Smith.” We can not agree to this contention. In Passieu v. B. F. Goodrich Company, 58 Ga. App. 691 (199 S. E. 775), this court made the following holding: “Automobile tires and tubes, attached to an automobile truck subsequently to the execution and recording of a conditional-sale contract retaining title to the truck, do not become an integral part of the truck, under the principle of accession, as against ^the conditional seller of the tires and tubes under a duly-recorded contract retaining title thereto, under the facts in this case, and the court properly rendered judgment in favor of the seller of the tires and tubes.” That decision is controlling in principle in the instant case.
The fact that the seller of the casings and inner tubes in this case did not record his contract retaining title thereto is immaterial,
In the instant case Ivey’s Inc. had no lien on the casings and tubes, had not extended credit to Southern Auto Stores or to any one else on the strength of the apparent ownership of the property, and was not a purchaser of the casings and tubes. We therefore think that in so far as Ivey’s Inc. is concerned it was unnecessary to record the retention-of-title contract, to the casings and tubes. But, in any event, it is stipulated in the agreed statement of facts that “at the time Ivey’s Inc. repossessed said automobile their agent was informed by the defendant [Eli Smith] that the . . tires and tubes belonged to Southern Auto Stores under conditional-sales contract and had not been paid for;” and this was actual notice of Southern Auto Stores’ retention-of-title contract. In our opinion the court properly overruled the certiorari.
Judgment affirmed.