International Clay Machinery Co. v. Moultrie Banking Co.

Stephens, J. 1. Where personal property is sold under a contract whereby the title thereto is retained and the property is subject to the seller’s order until the purchase-price has been fully paid, and the right is reserved in the seller to remove and retake the property on default as to payment of the purchase-money, and where the property is afterwards, even with the consent of the seller, installed by the purchaser in a building upon land belonging to the purchaser, in such a manner as to become attached as a part of the realty, the seller’s title retained therein is not, by reason of such annexation to the realty, lost or forfeited to a pre-existing mortgagee of the land, if the property attached has not lost its identity and can be detached from the realty without essential injury to the ^vMue of the freehold as it would have stood had the attachment not been made. This ruling is in accordance with the weight of authority prevailing in America. Wade v. Johnston, 25 Ga. 331; Campbell v. Roddy, 44 N. J. Eq. 244 (6 Am. St. R. 889) ; Holt v. Henley, 232 U. S. 637; Detroit Steel Cooperage Co. v. Sisterville Brewery Co., 233 U. S. 712; 26 C. J. 684 et seq.; 13 Am. & Eng. Enc. of Law (2d ed.) 630 et seq.; 37 L. R. A. (N. S.) 119 (note); 19 Cyc. 1051 et seq.; 13 A. L. R. 448 (note); 1 B. R. C. 664 (note). The ruling here made is distinguishable from that of the United States Circuit Court of Appeals, fifth circuit, in Schofield’s Sons Co. v. Citizens’ Bank of Moultrie, 2 Fed. (3d series) 129, which holds that in this State a contract retaining title in the seller of personalty which afterwards becomes attached to the realty does not prevail as against a pre-existing mortgagee, since the property sold became “an essential and indispensable part of the completed structure contemplated by the mortgagee.” 2. Such an agreement retaining title in the seller to personal property sold prevails as against a subsequent purchaser of the land, including a purchaser at a judicial sale, with notice of the agreement; and a failure of the purchaser to deliver the personalty to the seller on demand constitutes a conversion for which trover will lie. Constructive notice by virtue of the record of the retention-of-title contract is sufficient; but in order to constitute constructive notice to the purchaser of the realty, the personalty attached must have retained its identity and be capable of identification. 26 C. J. 681, 683, 734; 13 Am. & Eng. Enc. of Law (2d ed.) 624, 627, 630, 679; 19 Cyc. 1074; 38 Cyc. 2016; dictum in the case of Empire Cotton Oil Co. v. Continental Gin Co., 21 Ga. App. 16, 20 (93 S. E. 525), and citations supra. 3. In a suit in trover by the seller of the personalty, who had retained title thereto, against the pre-existing mortgagee of the land, who after-wards purchased the land at a judicial sale, with constructive notice from the record of the plaintiff’s retention of title to the personalty sold, although at the time of the purchase of the land by the defendant the personalty was attached thereto as a part of the realty, where the evidence authorized the inference that the personalty sold had not lost its identity and could be detached from the realty without injury to the remaining property, and the defendant had refused to deliver it [397] to the plaintiff on demand, a verdict for the plaintiff would have been authorized, and the court erred in directing a verdict for the defendant. Decided October 2, 1925. 4. It was harmless to the plaintiff to admit the evidence objected to in the amendment to the motion for a new trial, tending to establish the defendant as a pre-existing mortgagee and as a subsequent purchaser of the land. Judgment reversed. Jenkins, P. J., eoneurs. Bell, J., disqualified. Lippitt & Burt, for plaintiff. Kline & Moore, for defendant.