Mize v. Paschal, 56 S.E.2d 266

Mize v. Paschal

56 S.E.2d 266 | Ga. | 1949

Lead Opinion

1. "Where there is no conflict in the evidence, and that introduced, with all reasonable deductions or inferences therefrom, shall demand a particular verdict, the court may direct the jury to find for the party entitled thereto." Code § 110-104. In other words, there is no error in directing a verdict which is the inevitable and only legal result of the pleadings and the evidence. Hooks v. Frick Co., 75 Ga. 715; City of Abbeville v. Jay, 205 Ga. 743 (55 S.E.2d 129), and cases cited.

2. Where personal property is sold and delivered with the condition affixed to the sale that the title is to remain in the vendor until payment of the purchase-price, such reservation of title is invalid as to third parties, unless the contract embracing the same is reduced to writing, duly attested, and recorded as prescribed by law. Code, §§ 67-1401, 67-1402; Penland v. Cathey, 110 Ga. 431 (35 S.E. 659); Farmers Bank of Doerun v. Avery, 145 Ga. 449 (89 S.E. 409). The institution of a trover suit, within the statutory period of thirty days for the record of such instruments, by the original vendor against a third party who has acquired the property so conveyed from his vendee for a valuable consideration and without actual knowledge of the title reservation, does not dispense with the necessity of duly recording the contract; and it is a settled rule of law that, in the absence of such record, the plaintiff vendor is not entitled to prevail against one who acquired the property in good faith and for a valuable consideration. Armitage-Herschell Co. v. Muscogee Real Estate Co., 119 Ga. 552 (46 S.E. 634); Smith Motor Car Co. v. Universal Credit Co. 176 Ga. 565 (168 S.E. 18); Northern Finance Corp. v. Hollingsworth, 52 Ga. App. 337 (183 S.E. 73).

3. Under the rules stated in 1 and 2 above, the evidence in the present case, as it is shown by the accompanying statement of facts, demanded a finding in favor of the defendant, and the court therefore did not err, as the plaintiff in error contends, in directing the verdict complained of.

Judgment affirmed. All the Justices concur, except Wyatt, J.,who dissents.

No. 16873. NOVEMBER 16, 1949. *190 H. S. Mize brought bail trover to recover a certain described automobile, and its hire, from W. A. Paschal. By his answer, Paschal said that he was the owner of the car, having purchased it in good faith and for a valuable consideration from Miller Jackson, a firm composed of J. T. Miller and M. H. Jackson, who gave him a warranty of title. Further answering, and by cross-action, he alleged that Mize, since filing his trover suit and as a part of a plan and scheme to wrongfully recover the property sued for, had given John Howard Johnson and Howard Johnson a bill of sale to the car in question, and that Miller, Jackson, and the two Johnsons should be made parties to the trover action in order to avoid a multiplicity of suits. He prayed for a rule nisi, requiring them to show cause why they should not be made parties, and for equitable relief. On the hearing of the rule, Mize and Paschal agreed that Howard Johnson was not a proper party, and the court then granted an order making John Howard Johnson a party, but refused to make Miller and Jackson parties. That judgment was not excepted to. The property sued for was seized and sold by the sheriff during the pendency of the suit, and the proceeds were held by him subject to a final adjudication of the issue of title. On the trial, and after both sides had introduced their evidence, the court directed the jury to find that the defendant Paschal was entitled to the proceeds arising from a sale of the car, and upon such verdict a judgment was accordingly rendered. Mize filed a motion for new trial containing the usual general grounds, which he amended by adding a ground alleging that the court erred in directing a verdict for the defendant. The motion as amended was overruled. Mize excepted to that judgment and carried his case to the Court of Appeals, and that court transferred the writ of error to this court for decision upon the theory that the defendant's cross-action converted the trover suit into an equity case or to one both at law and in equity.

The evidence shows these undisputed facts: On July 10, 1948, John Howard Johnson purchased the car in question from O. B. Alewine, of Athens, Georgia, and paid him for it. On the same day, he sold and delivered the car to Mize, but, in writing, retained *191 the title for it as security for the purchase-money. This instrument was never recorded. He gave Mize permission to sell it with the understanding that he (Mize) would pay for it as soon as it was sold. On July 13, 1948, Mize sold the car at public auction in Atlanta, Georgia, to Homer Sneed and accepted his check for the purchase-price. He delivered it to Sneed and gave him a bill of sale to it, which contained a reservation of title until the check was paid by the bank on which it was drawn. The check was deposited in an Athens bank to the credit of John Howard Johnson, but was never paid. The bill of sale given to Sneed was never recorded. On July 14, 1948, Sneed sold the car at an auction lot in Macon, Georgia, to a buyer for Miller Jackson, and received payment in full for it. On the following day, Miller Jackson sold it at their place of business in Sparta, Georgia, to the defendant Paschal. Neither Miller, Jackson, nor Paschal had actual notice of the unrecorded instruments retaining title for the car, and the evidence shows no facts which would charge them with such knowledge.

Joseph E. Webb, for plaintiff.

R. C. Whitman and Lula G. Whitman, for defendant.

Dissenting Opinion

I do not consider this to be a case in equity, and therefore this court has no jurisdiction of the same, but it is a case for the consideration of the Court of Appeals.