5 Ga. App. 134 | Ga. Ct. App. | 1908
We recognize that persons financially weak could' ofttimes buy property on credit more easily if sellers were always afforded a safe, speedy, and inexpensive remedy by which they could be sure that they would either get back the property or be ¡.>aid for it. We see the expediency of allowing the seller of personal property to contract that he shall hold a lien thereon as well as the title thereto, and that he shall have the choice of employing either or both of the remedies of mortgage foreclosure and trover. Therefore we have considered the question carefully, to see if we could not find some way of sustaining the present action. We can not do it without overturning time-honored and well-established principles; and we are unwilling to pose as iconoclasts, even for the sake of so good a cause.
We are sure that it was competent for the parties to agree that the payee might have an election of remedies; and this right of election the courts will recognize. The plaintiff was-to retain the title to the mules until they were fully paid for. Upon default of payment of any part of the price, he had the right to bring trover and recover the property with its reasonable hire, subject to the defendant’s right to set off any sums he may have paid on the debt. Hays v. Jordan, 85 Ga. 742 (11 S. E. 833, 9 L. R. A. 373). However, the suit in trover would have rescinded the sale and have so far destroyed the obligation to pay that no action could thereafter be maintained on the note as an evidence of indebtedness, or upon the mortgage. Glisson v. Heggie, 105 Ga. 30 (31 S. E. 118). On the other hand, the plaintiff might
Judgment affirmed.