7 Ga. App. 668 | Ga. Ct. App. | 1910
Lead Opinion
The plaintiffs in error obtained a common-law judgment against one Randall Banks, and the fi. fa. was levied upon three mules, some corn and fodder, and a number of cows and calves, as the property of the defendant. P. A. Stanton interposed a claim to two of the mules, and 'the judge (hearing the case without a jury) found in favor of the claimant, and rendered a judgment dismissing the levy and adjudging the two mules not subject thereto. It was not disputed in the evidence that Randall Banks originally purchased the mules in question, that they remained always in his possession, and that the claimant, as agent for Banks, returned them for taxation as the property of Banks. It appears also that Banks paid $83 upon the purchase-money note. The claimant rested his case upon the proposition that having purchased from Aiken & Anderson, the original payees, this note, in which Banks contracted that the title to the mules should be reserved and remain in Aiken & Anderson until full payment of the purchase-price, he was subrogated to all of the rights of Aiken & Anderson. The note reserving the title was duly recorded, and was taken up by the claimant about two years before the judgment was rendered, but no written transfer of the note or of the security was made. The evidence of the transfer rests upon the statement that he paid the note and it was delivered to him by Aiken. & Anderson. There is no evidence that there was even a parol understanding that the title should not pass to the maker of the note upon the payment of his debt by Stanton. Stanton’s testimony is to the effect that he paid Aiken & Anderson the amount of the note, and that they then turned the note over to him by mere delivery, without indorsement, guaranty, or any written assignment.
In Adams v. Williams, 125 Ga. 433 (54 S. E. 101), it was held that “before the plaintiff could be permitted to maintain a suit against Williams based upon the writing, the former would have to allege and prove that the chose in action had been duly assigned in writing, either to his firm or to him as surviving partner. There could be no privity of contract between them, unless the plaintiff, by legal assignment and transfer in writing, became vested with the legal title to the chose in action.” As we view the case, to hold that by mere delivery a note retaining title to personalty would put the title in such a transferee would be to overturn the ruling in the Turk case, supra, and to create a possibility of fraud, and oftentimes subject the debtor to needless hardships. A debtor may make payments to his creditor after an assignment has been made, in ignorance of what has taken place, but this is not so likely to happen where the assignment is in writing .and a date definitely fixed, as when the parties are compelled to rely upon the uncertainties of memory, as to the date and other circumstances of the assignment in parol. In so far as there appears to be a conflict between the Townsend, case and the case at bar, the distinction between the two, dependent upon the facts of each, is to be noted. Where there is an unconditional assignment in writing, the transferor warrants the property and the title thereto. He would probably be liable also as an indorser. When the note is assigned, without recourse, or by mere delivery, the transferee has no recourse in either event upon the transferor.
While the claimant testified that the two mules in question were his property, it is apparent, from his testimony upon the cross-examination, that this was merely a conclusion of the witness, and not justified by the facts related by him upon cross-examination. The claimant’s testimony, in the light of the ruling in Evans v. Josephine Mills, 119 Ga. 451 (46 S. E. 674), was insuf
Concurrence Opinion
concurring specially. I think that the decision in the case of Cade v. Jenkins, 88 Ga. 791 (15 S. E. 292), correctly states the law, and that what is said in subsequent decisions, so far as it conflicts with what is said in that decision, is not sound. The note in this case was made payable to Aiken & Anderson or bearer, and was therefore transferable by delivery only. If Aiken & Anderson had transferred it, even by delivery and without written indorsement, they would, nevertheless, have sustained to the transferee such a relationship as to impose the contingent liability mentioned in the Civil Code, §3685. However, where transferors merely accept payment for the note, no such liability survives against them. The evidence in this case indicates that the note was paid and not transferred; consequently, even under the case of Cade v. Jenkins, supra, the claimant had no title.