17 Ga. App. 645 | Ga. Ct. App. | 1916
Puett sold a mule and took a note for the purchase-price, retaining title, which was duly recorded on March 13,
Two questions are presented by the record, the first, whether the foreclosure of the note by Puett as a mortgage amounted to such an election of remedies on his part as that, by choosing to disaffirm his title to the mule, he waived the right thereafter to assert his title; and second, whether the evidence as to the conduct of Puett and his attorney in relation to the sale by the trustee in bankruptcy amounted to an estoppel. It is unnecessary to rule upon the second question, because it is so well settled that questions of laches and fraud are for determination by a jury that the trial judge, no doubt, based his ruling solely upon the first question, without regard to the second. If the note in question, although it contained a retention of title, had contained also a mortgage clause merely creating a lien upon the property described, this would have permitted the foreclosure of the mortgage, Puett would have had an option either to disaffirm his title, by foreclosing the mortgage, or to assert it by trover; and if he had foreclosed the mortgage, the case would have fallen squarely under the ruling of this court in Kennedy v. Manry, 6 Ga. App. 816 (66 S. E. 29). In other, words, if the note contained a mortgage clause, as above indicated, and Puett elected to foreclose the paper as a mortgage, he would not be permitted thereafter to assert title and attempt to occupy
Judgment reversed.