Equitable Credit Co. v. Miller

Supreme Court of Georgia

Equitable Credit Co. v. Miller

137 S.E. 771, 164 Ga. 49, 1927 Ga. LEXIS 118

CourtSupreme Court of Georgia

DecidedApril 12, 1927

DocketNo. 5559

StatusPublished

Cited by12 cases

This text of 137 S.E. 771 (Equitable Credit Co. v. Miller) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Equitable Credit Co. v. Miller, 137 S.E. 771, 164 Ga. 49, 1927 Ga. LEXIS 118 (Ga. 1927).

Pincite

Opinion

Gilbert, J.

1. Where one sells property, taking purchase-money notes containing a retention of title, and where on default in the payment of such notes the vendor levies an attachment on the property, the vendee replevies the property, the vendor files his declaration in attachment, and the debtor is adjudicated a bankrupt within four months after the levy of the attachment, and thereafter on the trial of the case the defendant pleads his discharge in bankruptcy, such discharge does not affect the right of the vendor, holder of title, to obtain a special judgment against the property and to bring the property to sale to pay the debt.

2. “The effect of 67 f of the national bankruptcy act is not to avoid the levies and liens therein referred to against all the world, but only as against the trustee in bankruptcy and those claiming under him.” McKenney v. Cheney, 118 Ga. 387 (45 S. E. 433); Spradlin v. Kramer, 146 Ga. 396 (91 S. E. 409); McBride v. Gibbs, 148 Ga. 380 (96 S. E. 1004) ; Coker v. Utter, 152 Ga. 157 (108 S. E. 538).

3. The replevy bond takes the place of the property, and in the circumstances above stated the discharge in bankruptcy will not prevent a judgment being rendered against the surety on such bond.

4. These rulings do not conflict with Alvaton Mercantile Co. v. Caldwell, 156 Ga. 317 (119 S. E. 25). In that ease the court was not dealing with the rights of a creditor to subject property which he had sold with retention of title, or on which he held a lien by contract. The lien asserted was one arising by general judgment. The general judgment being void because of discharge in bankruptcy, the lien created thereby and the liability of the surety were also discharged.

5. Moreover, the homestead-exemption feature adds nothing to the benefit of the debtor. In the purchase-money note sued on there was a waiver of homestead, a retention of title, and also the express retention of the right to take possession of the property on default in payment of the debt. Therefore, the debt being for purchase-money, the debtor having no title and having waived homestead, he was absolutely without legal right to interfere with the subjection of the property to payment of the debt. Perdue v. Fraley, 92 Ga. 780 (19 S. E. 40) ; Johns v. Robinson, 119 Ga. 59, at page 63 (45 S. E. 727).

6. It follows that the Court of Appeals erred in reversing the judgment of the trial court. Judgment reversed.

Bankruptcy, 7 C. J. p. 185, n. 35; p. 192, n. 66, 67; p. 196, n. 83; p. 197, n. 89, 90; p. 397, n. 1 New; p. 409, n. 85.

Exemptions, 25 C. J. p. 113, n. 68.

'All the Justices concur. Willingham, Wright & Covington and Frank Carter, for plaintiff. M. B. Fubanks, for defendant.

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Gilbert, J.

1. Where one sells property, taking purchase-money notes containing a retention of title, and where on default in the payment of such notes the vendor levies an attachment on the property, the vendee replevies the property, the vendor files his declaration in attachment, and the debtor is adjudicated a bankrupt within four months after the levy of the attachment, and thereafter on the trial of the case the defendant pleads his discharge in bankruptcy, such discharge does not affect the right of the vendor, holder of title, to obtain a special judgment against the property and to bring the property to sale to pay the debt.

2. “The effect of 67 f of the national bankruptcy act is not to avoid the levies and liens therein referred to against all the world, but only as against the trustee in bankruptcy and those claiming under him.” McKenney v. Cheney, 118 Ga. 387 (45 S. E. 433); Spradlin v. Kramer, 146 Ga. 396 (91 S. E. 409); McBride v. Gibbs, 148 Ga. 380 (96 S. E. 1004) ; Coker v. Utter, 152 Ga. 157 (108 S. E. 538).

3. The replevy bond takes the place of the property, and in the circumstances above stated the discharge in bankruptcy will not prevent a judgment being rendered against the surety on such bond.

4. These rulings do not conflict with Alvaton Mercantile Co. v. Caldwell, 156 Ga. 317 (119 S. E. 25). In that ease the court was not dealing with the rights of a creditor to subject property which he had sold with retention of title, or on which he held a lien by contract. The lien asserted was one arising by general judgment. The general judgment being void because of discharge in bankruptcy, the lien created thereby and the liability of the surety were also discharged.

5. Moreover, the homestead-exemption feature adds nothing to the benefit of the debtor. In the purchase-money note sued on there was a waiver of homestead, a retention of title, and also the express retention of the right to take possession of the property on default in payment of the debt. Therefore, the debt being for purchase-money, the debtor having no title and having waived homestead, he was absolutely without legal right to interfere with the subjection of the property to payment of the debt. Perdue v. Fraley, 92 Ga. 780 (19 S. E. 40) ; Johns v. Robinson, 119 Ga. 59, at page 63 (45 S. E. 727).

6. It follows that the Court of Appeals erred in reversing the judgment of the trial court. Judgment reversed.

Bankruptcy, 7 C. J. p. 185, n. 35; p. 192, n. 66, 67; p. 196, n. 83; p. 197, n. 89, 90; p. 397, n. 1 New; p. 409, n. 85.

Exemptions, 25 C. J. p. 113, n. 68.

'All the Justices concur. Willingham, Wright & Covington and Frank Carter, for plaintiff. M. B. Fubanks, for defendant.

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137 S.E. 771, 164 Ga. 49, 1927 Ga. LEXIS 118, Counsel Stack Legal Research, https://law.counselstack.com/opinion/equitable-credit-co-v-miller-ga-1927.

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