Oaks v. Singer Sewing Machine Co.

87 S.E. 719, 17 Ga. App. 517, 1916 Ga. App. LEXIS 743

• Court: Court of Appeals of Georgia
• Decided: January 21, 1916
• Docket: 6522
• Status: Published

Opinion

Broyles, J.

1. In a possessory-warrant proceeding there is no question as to the title or as to the right of possession of the property in controversy; the sole question is as to the manner in which the possession was acquired by the defendant. Civil Code, §§ 5374, 5371; Mills v. Glover, 22 Ga. 319; Trotti v. Wyly, 77 Ga. 684.

2. The Singer Sewing Machine Company sued out a possessory warrant against Oaks, to recover a described sewing-machine. The contract was between the plaintiff company and one Carver; and though this contract is called, throughout, a “rent contract,” or a “lease,” and all the payments to be made are designated as “rent,” it is really, under the repeated rulings of the Supreme Court and of-this court, not a lease, but a contract of conditional sale with the title reserved in the vendor. Rhodes Furniture Co. v. Jenkins, 2 Ga. App. 475, 478 (58 S. E. 897), ■and cases therein cited. This being true, and the contract not having been recorded as required by law, the defendant, a third person who was in possession of the machine when the possessory warrant was sworn out, and who, in good faith and without any notice of this conditional-sale contract, purchased the machine, acquired its possession in a quiet, peaceable, and lawful manner, and the justice of the peace erred in awarding the property to the plaintiff.

Decided January 21, 1916.

Petition for certiorari; from Tift superior court — Judge Thomas. March 13, 1915.

J. H. Price, for plaintiff in error.

3. The judge of the superior court erred in refusing to sanction the petition for certiorari. Judgment reversed.