Jordan Mercantile Co. v. Brooks

Gilbert, J. The endorsement is sufficient to convey to the transferee such title to the property as will authorize a suit in trover. This was not the rule until the passage of the act of 1887 (Acts 1887, p. 62). Farrar v. Brackett, 86 Ga. 463 (12 S. E. 686). The act just mentioned provides that where any judgment has been rendered “upon any note or other evidence of debt given for the purchase-money of personal property, where the title to the same has been retained in the vendor, it shall and may be lawful for the holder of said note or other evidence of debt, in which title is retained,” to make and tile and have recorded a bill of sale to the defendant for sai,d personal property; whereupon said personal property may be levied on and sold under such judgment as in other cases. It further provides that such judgment shall take and be a lien upon said personal property and the proceeds of the sale thereof, prior to. all other judgments, claims, liens, and other encumbrances, until the said judgment shall be fully paid off and satisfied. Thus it is obvious that the General Assembly changed the law theretofore existing with respect to notes giuen for the purchase-money of, personal property where title to the property was retained until the payment of the note. It was specifically provided that the “holder” of the note could avail himself of the remedy which formerly only the payee of the note could exercise. The word “holder,” as it is used in the act, is synonymous with the word “bearer.” This act should have appeared in the Code of 1895, but the codifiers failed to include it; and the same is true in regard to all subsequent codes. Although this court referred to the act eo nomine in the case of Cade v. Jenkins, 88 Ga. 791 (15 S. E. 292), decided in the year 1892,'this decision, as well as the act, also [160] escaped the codifiers of all codes. As a possible explanation it may be noted .that the General Assembly, in 1894, passed an act substantially covering the same ground as the former legislation of 188?, and also including additional matters. Acts of 1894, p. 100, Civil Code, § 6037 et seq. Whatever effect the act of 1894 may have had upon the law as it then-stood, it can not be said that it repealed the provision in the act of 1887 in regard to the transfer of title to personal property retained in a purchase-money note to the holder thereof where there has been a transfer. The new legislation was to the same effect. The decision in Cade v. Jenkins, supra, recognized the change in the rule with reference to personal property, and on the authority of the new legislation ruled that a transfer of such notes “since the passage of said act, even if made without recourse on the payee, will not operate to divest the notes of their character as a debt for purchase-money.” In the opinion it was further said: “An assignment of the notes, since this act, does not extinguish the security, but carries it along. The debt does not lose its character as a purchase-money debt, but its peculiar privilege is transmitted together with the instrument evidencing it. The fact that the assignment is made without recourse makes no difference, since the language of the act is broad enough to embrace any holder.” The decision in Turnell v. Carter, 5 Ga. App. 847, 848 (64 S. E. 114), recognized the authority of the above-stated case and the act upon which it was based. In Burch v. Pedigo, 113 Ga. 1157 (39 S. E. 493, 54 L. R. A. 808), it was held that where a purchase-money note of the character under discussion was assigned “without recourse,” the retained title was divested, citing Farrar v. Brackett, supra. No mention was made in this decision of the act of 1887, or of the case of Cade v. Jenkins, supra. The decisions in Bradley v. Cassels, 117 Ga. 517 (4) (43 S. E. 857), and McCullough v. Pritchett, 120 Ga. 585 (48 S. E. 148), followed the case of Burch v. Pedigo, citing that case as authority, without reference to the act of 1887 or the case of Cade v. Jenkins. In Joiner v. Stallings, 127 Ga. 203 (56 S. E. 304), it was held that the words of the endorsement were sufficient to pass the legal title to the property, and not merely the title to the instrument. In Townsend v. Southern Product Co., 127 Ga. 342 (56 S. E. 436, 119 Am. St. R. 340), the conflict in the decisions above mentioned was remarked, Evans. J.. stating; “It is [161] unnecessary to attempt to reconcile or point out the differences,” for the reason that the assignment in the Townsend, case was unconditional and did not extinguish the security. The ruling in Setze v. National Bank, 140 Ga. 603 (79 S. E. 540), had reference to a mortgage on realty, and not a purchase-money note with retention of title. Clearly the conflict in the decisions of this court, as well as in the decisiohs of the Court of Appeals, to which our attention has been called by that court, is irreconcilable. The rule as declared in the case of Cade v. Jenkins, supra, as well as the act of the General Assembly upon which it was based, leaves no room for doubt as to what is, the law. The Cade case has never been overruled. The act of 1887 has never been repealed. All rulings in subsequent cases which are in conflict therewith must yield. The question propounded is whether in the case of a number of transfers of a note given for the purchase-money of personalty, in which title to the property is retained in the payee of the note, some of the transfers being made “without recourse” upon the transferor, the last transferee may maintain trover to recover the property in event of failure of the maker of the note to pay the same. In other words, will the same principles apply as to the retention of title, in a trover suit, as are applicable to levy and sale of personalty under a special lien based on retention of title. We think it necessarily follows that if the assignment of notes given for the purchase-money of personal property .-carries the title to the assignee so that he may legally quitclaim the title for the purpose of levy and sale after judgment, as provided in the act of 1887, he also holds the title upon which a suit in trover may be based. 2, 3, 4. The other questions are sufficiently answered in the headnotes. All the Justices concur, except George, J., absent.