103 Ga. App. 865 | Ga. Ct. App. | 1961
To recover in a trover action, the plaintiff must first show either title or the right of possession (Underwood v. Underwood, 43 Ga. App. 643 (6), 645, 159 S. E. 725; Carter v. Hornsby, 68 Ga. App. 424, 428, 23 S. E. 2d 95); and where the plaintiff bases his trover suit on his claim of title to the property, the issue for determination is that of title (Little v. Lawrence, 56 Ga. App. 524 (1), 193 S. E. 181); and the burden
Where a contract of conditional sale is executed in another State and the property is brought into this State, the reservation of title in the seller is not effective as against one who in good faith has here acquired title to the property without actual notice of such reservation unless the contract was duly recorded as required by Code Ann. §§ 67-1403 and 67-108. Thus the controlling question presented by the exception to the denial of the defendant’s motion for a judgment notwithstanding the verdict is whether or not the evidence adduced upon the trial -of this case furnished any evidentiary basis for the jury’s finding that the contract was recorded in the proper county of this State in accordance with the provisions of these Code sections.
Code Ann. § 67-1403 provides that the registration and record of conditional bills of sale shall be governed in all respects by the laws relating to mortgages on personal property. Code § 67-108 provides that mortgages on personalty shall be re
Under this Code section, therefore, when property is purchased under a conditional-sale contract in another State by a nonresident of this State and the property is afterwards brought within this State, the assignee of the conditional vendor, in order to preserve his rights as against innocent purchasers for value and without notice, must, within six months after the property is brought in, record the conditional-sale contract in the county where the property is located on the date the instrument is filed for' record if the property is in transit'at the time of recording or in the county of its situs if it has come to rest in any permanent location, that is, the county of residence of the conditional vendee if he has become a resident of this State subsequent to the execution of the contract. Evans Motors of Ga. v. Gump Finance Co., 80 Ga. App. 836 (57 S. E. 2d 506). If the conditional vendee is a resident of this State at the time the property is purchased in another state, then, of course, the contract must be recorded in this State in the county of his residence. North v. Goebel, 138 Ga. 739 (4) (76 S. E. 46).
The only evidence adduced upon the trial of this case with reference to the issue of the proper recording of the contract in Polk County, Georgia, on May 1, 1959, consisted of the testimony of Mr. William H. Aenchbacher, a former agent of the plaintiff. He testified that he recorded the contract in Polk County, Ga., on May, 1, 1959, at the request of the Gadsden, Ala., branch of the plaintiff corporation; that he contacted Duncan’s mother at her home in Polk County on several occasions in the month of May, 1959; and that later he personally contacted Duncan, concerning his automobile, at his mother’s home in Polk County in the month of May, 1959; and that Duncan said that he was living there. He also testified that he saw Duncan’s wife and his automobile at his mother’s home when he
The testimony of the plaintiff’s agent, Aenchbacher, as to what Duncan had told him concerning the fact of his residence at his mother’s home in Polk County was hearsay and without probative value. See Fuller v. Fuller, 213 Ga. 103, 104 (97 S. E. 2d 306). This statement was not in disparagement of Duncan’s title or against his interest at the time made so as to be admissible in evidence against the defendants, his successors in title, as an exception to the hearsay rule under the purview of Code § 38-308 or § 38-407. See Carter v. Buchannon, 3 Ga. 513, 519.
Thus, the only competent evidence in the record as to the residence of the conditional vendee in Polk County, Ga., where the contract was recorded, consists of nothing more than the testimony of the plaintiff’s agent that Duncan, his wife and his automobile were seen at his mother’s home in the month of May, 1959. While the question of the vendee’s residence at the time of the execution or recordation of the contract is one of fact, {Bond v. Brewer, supra), and is to be determined by the ordinary and obvious indicia of residence (Alvaton Mercantile Co. v. Caldwell, 34 Ga. App. 151 (6), 152, 128 S. E. 781), this evidence is wholly insufficient, as a matter of law, to authorize a jury to find that Duncan was a resident of Polk County, Ga., at the time the contract was recorded on May 1, 1959. See General Motors Acceptance Corp. v. Williams, 103 Ga. App. 109, 110 (118 S. E. 2d 708).
Accordingly, the plaintiff did not cany the burden of establishing that the instrument under which it claimed title had been properly recorded in compliance with Code Ann. §§ 67-1403 and 67-108; and it appearing without dispute that the defendants in trover had acquired the property in good faith and without actual knowledge of such reservation of title in the plaintiff, the trial court erred in denying the defendants’ motion for a judgment notwithstanding the verdict. Motors Mortgage Corp. v. Purchase-Money Note Co., 38 Ga. App. 222 (143 S. E. 459). It
Judgment reversed loith direction that judgment be entered for the defendants in accordance with their motion for judgment notwithstanding the verdict.