79 Ga. 22 | Ga. | 1887
M. A. Stovall, a factor, warehouseman and commission merchant, transferred and constructively delivered, by warehouse receipt in the usual form, twenty-six bales of cotton to the National Exchange Bank of Augusta, as a pawn or pledge for the payment of a certain sum advanced by the bank to said Stovall. This cotton belonged to a customer of the warehouse, and was never i’emoved from the actual custody of the warehouseman, or its location changed; Stovall had made advances on it for which he claimed a factor’s lien. The cotton thus pledged or pawned was subsequently bought, paid for, taken possession of and removed by the Graniteville Manufacturing Company, who had no notice of. the pledge made by Stovall to the bank. The bank brought tróver against the manufacturing company for the recovery of this property, and upon the trial, the defendant in the action of. trover had a verdict, which was rendered by the judge on an agreed statement of facts, without the intervention of a jury. From that judgment this writ of error is prose» cuted.
Various questions have been made and argued before this court, but the only one which we find it necessary to determine is, whether the plaintiff, as pawnee or pledgee, had obtained by that transaction such a title as would enable it to recover in trover against a bona fide purchaser for value and without notice, either actual or constructive, of its claim or lien. Whether this transaction amounted to a complete pledge or pawn, consummated by the delivery of such possession to the pawnee as the article pledged was capable of, we deem it unnecessary to determine as between the parties to such pledge. Thé code, §2138, makes
In Frazer vs. Jackson, 46 Ga. 621, this court held that a bona fide purchaser of the absolute title to personal property, without notice of any unforeclosed statutory lien upon it, takes the same divested of any such lien; that our statutory lien laws secure priority of judgment to favored classes of debts out of certain property of the person who incurred the debts. But when such property passes into the hands of a bona fide purchaser without notice and before foreclosure, it is no longer the property of the person incurring the debt, and not having gone into the possession of one affected with notice, the lien is lost. The same principle is announced and adjudged in Beall vs. Butler, 54 Ga. 43.
But even if this had been a valid transfer of Stovall’s lien to the plaintiff, we do not think that it could have maintained trover against the defendant for the recovery of the property. No-title was conveyed to the plaintiff by this transaction. To enable the plaintiff to maintain trover, he must have either a general or special property in the chattel, and the actual possession or the right of possession. It is questionable, to say the least, if this is not one of the cases in which actual possession is essential to create such special property in the thing pawned as to entitle the plaintiff in any case to maintain this action. The general property in tho goods pawned remains in the pawner, but the pawnee has a special prop
The plaintiff in this case had neither title nor such possession as that which the law contemplates when the defendant, by a fair sale, acquired the property, and as would give the right to maintain this suit. There was no error in holding that the action, under these circumstances, could not be maintained.
It is perhaps necessary to remark that we have purposely abstained from considering any other questions than such as were essential to the final disposition of the case made upon the record. Although invoked to do so, we must respectfully decline, as we do not conceive that we have the authority to respond to such an invitation.
The following authorities are cited in the brief of counsel for the plaintiff in error:
38 Ga. 391, 402 ; 65 Id. 348; 69 Id. 451; 67 Id. 24; 34 Id. 225; 43 Id. 173 ; 53 Id. 36; 57 Id. 410; Story on Bailments, §297 (6 ed. 272); citing 2 Term R. 462; 12 Mass. 300; 1 Pick. 389, 396; 20 Pick. 405; 9 Pick. 347, 349; 61 Am. Decis. 481; 96 U.S. 477; Colebrook on Collateral Securities, §420, p. 565; citing 48 Mich. 118; 13 Bush, 495; 10 Bush, 419; 79 Ill. 305 ; 66 Ill. 270; 54 N. Y. 18-21 ; 8 Col. 614; 19 Ohio St. 424; 29 Wis. 24, 43; Story on Bailments, §299, p. 274 (6 ed.); 14 Pick. 497, 505, 509; 1 Sandford, 248; Colebrook on Collateral Sec. 558, 531; Code, §§2139, 3030, 2141, 2059, 2091, 2129, 2094; 2 Addison on Torts, 1292, 692; 1 Am. Rep. 137; 12 Cush. 19; 42 Am. Rep. 465; 7 Ga. 530, 534; 8 Howard, 399; 43 Ga. 173; 13 Bush. 495; 20 Reporter, 625; 6 Ver. 400; 29 Wis. 42, 44; 54 Ga. 114; 1 Smith
Cited in brief for defendant in error :
38 Ga. 391; 120 U. S. 20 ; Story on Agency, §224, 225, 389; 10 Am. Decis. 641; Story on Law Sales, §104; Jones on Pledges, §§329-330 ; §26; Code, §2138 ; Davis vs. Meyer, S. C. Arkansas, June 19, 1886 (S. W. Rep. vol. 1, no. 2, p. 95); Code, §1593; 46 Ga. 621; 54 Id. 43; 5 Id. 153 ; 73 Id. 418 ; Story on Agency, §§87, 93, 94; Add. on Cont. vol. 2, §547; 54 Am. Rep. 770; 31 N. Y. 507; 25 N. Y. 278; Jones on Pledges, §47; Code, §2189; 72 Ga. 39; Add. Torts, vol. 1, §537; Code, §2204; Greenl. Ev. vol. 2, 307.
Judgment affirmed.