Perdue v. Griffin

Jenkins, P. J. Plaintiff delivered Ms Buick car to the defendant dealers, with the understanding that it was to be exchanged or bartered for one of similar type. He contended that the defendants made constructive delivery of the new car in exchange for the old, and he sued in trover for the new car thus claimed to have been delivered. Whether or not, under the evidence submitted, such a delivery was made is one of the two questions in the case. The testimony on this question is set forth in the statement following this decision. The other question is whether the defendants had title to the car at the time of the alleged delivery, or whether title was in a certain bank, under an instrument held by the bank. Held: 1. “The plaintiff in trover must recover on the strength of his own title. An outstanding title in a third person may be shown by the defendant, and will defeat a recovery.” Central Bank v. Ga. Grocery Co., 120 Ga. 883, 885 (48 S. E. 325). “‘The criterion by which a deed (or bill of sale) to secure debt is distinguished from a statutory mortgage — or, as we ordinarily say, from a mortgage — is that the one passes title and the other does not; and this is determined by the apparent intention of the parties as evidenced by the writings connected with the transaction. Though the instrument purports to convey the property to the grantee, yet if it describes a debt, and there is in it a defeasance clause, i. e., a provision declaring that it shall be void or of no further effect upon the payment of the debt, it is a mortgage and not a deed’ ” or bill of sale. Dewit v. Bozeman, 17 Ga. App. 666 (2) (87 S. E. 1100). Although an instrument be entitled a “bill of sale” and contain a clause purporting to “grant, sell, and convey” certain personalty, if it provides merely that the grantee is “to have and to hold” the property as additional security “until” the debt therein described “is paid and fully satisfied,” the instrument will be construed to be a mortgage, and not a bill of sale to secure a debt, since, under the provisions of such a defeasance clause, the mere payment of the debt operates to extinguish the lien without any act of cancellation or conveyance on the part of the holder thereof. The instrument offered by the defendants for the purpose of defeating the plaintiff’s action of trover by showing title in a third person, being under the rules stated a mortgage conveying no title, was properly excluded by the court as irrelevant. Denton v. Shields, 120 Ga. 1076, 1078 (48 S. E. 423); Pitts v. Maier, 115 Ga. 281 (41 S. E. 570); Lane v. Smart, 21 Ga. App. 292 (1), 293 (94 S. E. 325); Massillon Engine Co. v. Burnet, 19 Ga. App. 487 (1) (91 S. E. 786). 2. Delivery may be actual or constructive. In the latter case, while actual [101] possession may remain in tlie vendor, he thereafter holds not for himself, lmt as the agent or bailee of the purchaser. The question is not whether the vendor retains actual possession, but whether he has parted with his dominion over the property, so as thereafter to hold under the authority of the vendee. In the instant case the promise to the plaintiff by one of the defendants to make future delivery was not the equivalent of present constructive delivery; nor was delivery made by the statement to the plaintiff’s attorney'in which such promise was renewed and reference was made to the property as belonging to the plaintiff; since, in the absence of a writing passing title, delivery is necessary, and the defendant in refusing actual delivery did not assume to hold possession for the plaintiff, but, while promising future delivery, plainly and distinctly indicated that dominion over the property could not then be parted with, but was conditional upon a future agreement with his partner. The plaintiff having failed to prove his title in the property sued for, in that he failed to show a delivery of the property to himself, a verdict in his favor was unauthorized. Decided April 19, 1924. Judgment reversed. Stephens and Bell, JJ., eoneur. Bennet, Twitty & Reese, for plaintiffs in error. Krauss & Strong, contra.