Austin v. Hamilton

• Decision Date: 15 April 1895
• Citation: 22 S.E. 304,96 Ga. 759
• Parties: AUSTIN. v. HAMILTON.
• Court: Georgia Supreme Court

22 S.E. 304

96 Ga. 759

AUSTIN.

v.HAMILTON.

Supreme Court of Georgia.

April 15, 1895.

Sale—Reservation of Title in Seller —Levy by Third Party.

Where the owner of personal property, by a parol contract of sale, sold the same to another, against whom there was a judgment, although it may have been the intention of the parties at the time of the sale that the seller should reserve the title until the property was paid for, and that the purchaser should give a promissory note accordingly, yet where no such note was in fact given, but, after an execution based on the judgment mentioned had been levied upon the property, the seller accepted and sold a mortgage thereon which had been previously executed by the purchaser, in which it was recited that the property belonged to the latter, the property, under these facts, was subject to the execution, as against a claim filed by the seller. See Mann v. Thompson, 12 S. E. 746, 86 Ga. 347.

(Syllabus by the Court.)

Error from superior court, Haralson county; C. G. Jones, Judge.

Action by G. R. Hamilton against House-worth to recover personal property. J. V. Austin intervened, claiming title to the property. From an order reversing a judgment for claimant, and ordering judgment for plaintiff, claimant brings error. Brought forward from last term. Code, § 4271a-c. Affirmed.

The following is the official report:

An execution in favor of Hamilton against Houseworth, based on a judgment of November 4, 1891, was levied on a bay colt. A claim was interposed by Austin. On the trial of the case in a magistrate's court, there was a verdict for the claimant. Plaintiff took the case by certiorari to the superior court. The certiorari was there sustained, and final judgment rendered in favor of plaintiff. To this claimant excepted. On the trial in the magistrate's court it was shown that at the time of the levy, February 18, 1893.the property was In the possession of defendant in fi. fa. Claimant testified: "I got the colt from John Loveless, and had it in my possession. I sold it to Houseworth, with the understanding it was to be paid for. I delivered it to Houseworth, and asked Big-gers, the clerk, to write the note, retaining title in me until the colt was paid for. I did not get the paper he fixed up until after the colt was levied on. I can't read. Biggers read the mortgage to me when I got it from him, and I told him it was not fixed right. I took it as he had it fixed. It does not belong to me now, as I have traded it, and have no interest in It."...