143 Ga. 563 | Ga. | 1915
Peoples Bank of Savannah brought an action of trover against the defendant to recover possession of. certain personal property, to wit, four automobiles specifically described in the petition. When the case came on for trial the plaintiff offered in evidence a certain written instrument, the same being offered as evidence of title and of the right of the plaintiff to recover in the action. The defendant objected, and it was thereupon excluded. The plaintiff then offered an amendment to his petition, which was objected to by the defendant, and this objection was sustained. To these rulings, and to the grant of a nonsuit, the plaintiff excepted.
We are of the opinion that each of the rulings of the court complained of was proper. From the amendment tendered and the instrument of writing which was offered in evidence it appears that the plaintiff had foreclosed a mortgage in its favor upon certain personal property. Subsequently to the foreclosure the plaintiff and the defendant entered into an agreement or contract which recited, among other things, that the defendant sold and conveyed certain automobiles to the plaintiff. Some of these automobiles were in Savannah, Ga.; others were at Hazlehurst, Jeff Davis county. There was an express power of sale given to the plaintiff in error as to the machines in Savannah; and it was also recited in the written instrument offered in evidence that the machines which constituted the personal property, the subject of litigation in this case, should be held subject to the order of the plaintiff, but it also distinctly appears from the record that these very machines had been levied upon by the sheriff of Jeff Davis county under a mortgage fi. fa. in favor of the plaintiff. It also appears that it was. agreed that this levy was not dismissed but continued, and was to continue as a subsisting levy. That being true, the machines were in the custody of the levying officer; the plaintiff was estopped, under the recitals, from denying that the right to the custody of them was in the sheriff; and that custody and right of possession
Judgment affirmed.