Wiggins v. Tumlin

23 S.E. 75, 96 Ga. 753

• Court: Supreme Court of Georgia
• Decided: April 1, 1895
• Status: Published

Opinion

Simmons, C. J.

1. Where the owner of personal property delivered the same to another on trial and for use, with the understanding that if the property suited the latter, the parties would close a trade for the sale thereof and that papers for this purpose should then be executed, there being no limit as to the length of time during which the property might be kept on trial, and no binding obligation to purchase upon the party receiving it, this was a mere bailment of the property and not a sale; and if afterwards the party so receiving the property decided to purchase it, and accordingly executed a note for the purchase money secured by mortgage, the title did not pass to the purchaser until the contract of sale was thus made and completed.

.■2. The lien of a mortgage on personalty given contemporaneously with the sale thereof to secure the purchase money, is of superior dignity to that of a judgment rendered against the mortgagor prior to the purchase and the giving of the mortgage for the purpose stated; and if after the maturity of the purchase money debt thus secured, the mortgagor, without requiring a foreclosure of the mortgage, in good faith and without fraud of any kind, returns the mortgaged property to his creditor in satisfaction of the mortgage debt, the fair value of the property not then being greater in amount than the purchase money thus paid, the property in question is not, either in the hands of the mortgagee or of his subsequent vendee, subject to an execution founded on the judgment above mentioned. Judgment reversed.

C. N. Featherston and J. Glenn, for plaintiff in error. Hoskinson & Harris, contra.