Derrick v. Pierce

19 S.E. 246, 94 Ga. 466, 1894 Ga. LEXIS 131

• Court: Supreme Court of Georgia
• Decided: April 2, 1894
• Status: Published

Opinion

An execution in favor of Pierce against Jones was-levied upon a mule, to which a claim was interposed by Derrick. The property was found subject. Derrick moved for a new trial, and the motion was overruled. The motion alleged, in addition to the general grounds, that the court erred in charging: “If the claimant sold the mule to defendant and delivered it to defendant under a contract in writing, which was recorded within thirty days, but -which contract was not executed in the presence of and attested by or approved before a notary public or justice of any court in this State or clerk of the superior court, it would be no notice to plaintiff although it was so recorded; and if plaintiff sued his debt after defendant came in possession of such mule, and obtained a judgment, it would be a lien from the date of the judgment, and the mule would be subject to the fi. fa. levied. If the defendant returned the mule to the claimant after the judgment was obtained and they, defendant and claimant, agreed on a cancellation of their trade, this would' not defeat the lien of plaintiff’s judgment, if it is true that the contract of sale was not properly executed and recorded in manner as charged in foregoing part of my charge.”

W. A. Brown, for plaintiff in error. E. J. Reagan, contra.

•Also, that the court erred in not charging, as requested by claimant: “If you find that the debt which was the foundation of the judgment on which they?, fa. was issued, was created and became due before the purchase of the property by the defendant in fi. fa., then you should find the property not subject, because no lien attached to said property from said judgment as against the claimant holding a written contract of sale containing reservation of title, although said contract was defectively executed and recorded.”