Home Finance Co. v. United Motor Sales

92 S.E.2d 718, 93 Ga. App. 690, 1956 Ga. App. LEXIS 832

• Court: Court of Appeals of Georgia
• Decided: April 4, 1956
• Docket: 36029
• Status: Published

Opinions

Nichols, J.

1. On the first trial of this case, the claimant admitted a prima facie case. This admission admitted that the plaintiff in fi. fa. was a bona fide purchaser of the conditional-sale contract, and necessarily admitted its proper execution and recordation in Richmond County, Georgia; otherwise the plaintiff in fi. fa. could not have had a prima, facie case. On the second trial, the plaintiff in fi. fa. assumed the burden of proof and the admissions by the claimant on the previous trial were not binding. Georgia Power Co. v. Moody, 58 Ga. App. 252 (198 S. E. 342).

2. The trial court sustained the claimant’s motion to strike from the mortgage foreclosure affidavit a copy of the conditional-sale contract, and sustained the objections of the claimant when the plaintiff in fi. fa. offered the original and a duplicate-original of the conditional-sale contract in evidence.

“Where a written contract for a conditional sale of personal property is to be enforced in Georgia, the mode of attestation and record of the contract will be fixed by the laws of this State.” Burgsteiner v. Street-Overland Co., 30 Ga. App. 140 (4a) (117 S. E. 268); Simmons v. Springfield Atlantic Bank, 90 Ga. App. 263 (83 S. E. 2d 56). “Where a paper which the law requires shall be attested as a mortgage on personalty in order to admit it to record, was not attested at all, the actual record of it was notice to nobody.” Cunningham & Co. v. Cureton, 96 Ga. 489 (2) (23 S. E. 420). An unattested conditional-sale contract is good between the parties, or between the maker and a transferee. Bank of Ringgold v. West Publishing Co., 61 Ga. App. 426 (6 S. E. 2d 598). However, as to third parties, the Supreme Court said in the case of Mize v. Paschal, 206 Ga. 189 (2) (56 S. E. 2d 266): “Where personal property is sold and delivered with the condition affixed to the sale that the title is to remain in the vendor until payment of the purchase-price, such reservation of title is invalid as to third parties, unless the contract embracing the same is reduced to writing, duly attested, and recorded as prescribed by law.” See also Smith Motor Car Co. v. Universal Credit Co., 176 Ga. 565 (168 S. E. 18).

Therefore, in the present case, where the burden of proof was on the plaintiff in fi. fa., and where the evidence shows without contradiction that the conditional-sale contract was not properly attested, and where the recording of such contract amounted to nothing, the question of whether or not the trial court erred in sustaining the claimant’s motions with respect to the contracts is immaterial, since the judgment dismissing the levy (which amounts to a nonsuit) would still have been demanded. Stewart v. Mundy, 131 Ga. 586 (4) (62 S. E. 986); Decatur County Bank v. Thomason, 31 Ga. App. 299 (120 S. E. 642).

Judgment affirmed.

Quillian, J., concurs. Felton, C. J., concurs specially.