5002 | Ga. Ct. App. | Sep 9, 1913
1. A paper stipulating that the -maker conveys certain described personalty to secure a debt, and that upon payment of the debt the creditor will reconvey the property to the debtor, is a bill of sale to secure a debt, and not a mortgage. The stipulation for a reconveyance of the property is not a defeasance clause, such as a provision that the instrument would be void upon payment of the debt. Upon payment of the debt a reconveyance can be compelled, but until this is done the instrument remains operative as a bill of sale, even though the debt is .paid. See Bellerby v. Thomas, 105 Ga. 477 (4) (30 S.E. 425" date_filed="1898-04-01" court="Ga." case_name="Bellerby v. Thomas">30 S. E. 425); Williamson v. Orient Ins. Co., 100 Ga. 791 (28 S.E. 914" date_filed="1897-08-07" court="Ga." case_name="Williamson v. Orient Insurance">28 S. E. 914); Pitts v. Maier, 115 Ga. 281 (41 S.E. 570" date_filed="1902-04-25" court="Ga." case_name="Parks v. State">41 S. E. 570); Ellison v. Wilson, 7 Ga. App. 214 (66 S.E. 631" date_filed="1909-12-24" court="Ga. Ct. App." case_name="Ellison & Chew v. Wilson">66 S. E. 631).
2. “A recorded deed of personal property is entitled to go in evidence without other proof.” Bell v. McCauley, 29 Ga. 355 (2). In Giannone v. Fleetwood, 93 Ga. 491 (21 S.E. 76" date_filed="1894-01-08" court="Ga." case_name="Giannone v. Fleetwood & Co.">21 S. E. 76), the court was dealing with an unrecorded bill of sale.
3. The plaintiff having elected to take a money verdict, the measure of his damages could not exceed the principal and interest of his debt, less any sum which had been received by him in part payment, notwithstanding the value of the property exceeded the amount due at the time of the trial. Holmes v. Langston, 110 Ga. 861 (36 S.E. 251" date_filed="1900-05-16" court="Ga." case_name="Holmes v. Langston & Woodson">36 S. E. 251). The original debt was $350, with interest from January 21, 1907, at 7 per cent, per annum. The plaintiff testified that on or about September 25, 1910, he had received on the debt $106. Hence the amount due on the date of the verdict, to wit, March 25, 1913, was $381.20. The verdict was for $448. Direction is given that the excess be written off from the verdict and judgment. Judgment affirmed, with direction.