Commercial Credit Corp. v. Citizens & Southern Nat. Bank

• Decision Date: 21 November 1942
• Docket Number: 29710,29764.
• Citation: 23 S.E.2d 198,68 Ga.App. 393
• Court: Georgia Court of Appeals
• Parties: COMMERCIAL CREDIT CORPORATION v. CITIZENS & SOUTHERN NAT. BANK. CITIZENS & SOUTHERN NAT. BANK v. COMMERCIAL CREDIT CORPORATION.

23 S.E.2d 198

68 Ga.App. 393

COMMERCIAL CREDIT CORPORATION v. CITIZENS & SOUTHERN NAT. BANK.

CITIZENS & SOUTHERN NAT. BANK v. COMMERCIAL CREDIT CORPORATION.

Nos. 29710, 29764.

Court of Appeals of Georgia, Division No. 1.

November 21, 1942

Grumbine a merchant doing business as the Guyton Motor Company, in order to secure a debt executed to the Citizens &amp Southern Bank a bill of sale to the automobile in question. The paper was duly recorded. The bank knew Guyton was a dealer in automobiles and that the automobile would be sold in the regular course of trade. Thereafter Archer, a bona fide purchaser, bought the automobile from Grumbine in due course of trade, paid part of the purchase price down and gave a conditional bill of sale to secure the balance. Grumbine transferred this conditional-sale contract to the Commercial Credit Corporation, on the same date, with notice that the car had been thus bought from Grumbine in due course of trade. The bank foreclosed its paper and levied on the automobile, which was in the possession of Archer. Archer filed a claim, on the trial of which the jury found against him. He moved for a new trial which was overruled "and the case went no further." As to that claim the ruling became the law of the case, irrespective of what the law of the State might be. The Commercial Credit Corporation then filed a claim to the automobile; the bank filed a plea of res judicata, which the judge overruled; the case went to trial and the jury found in favor of the bank. The Commercial Credit Corporation excepted by main bill to the overruling of its motion for new trial and the bank excepted by cross-bill to the overruling of the plea of res judicata.

Vance Dasher, of Springfield, and Kennedy, McWhorter & Jenkins of Savannah, for plaintiff in error.

Hinton Booth, of Statesboro, and Lee, Congdon & Fulcher, of Augusta, for defendant in error.

MacINTYRE Judge.

1. We will first take up the exception to the overruling of the plea of res judicata raised by the cross-bill. Code, § 110-501 provides: "A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue, or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered, until such judgment shall be reversed or set aside." The parties to the present claim case are unquestionably not the same parties who were before the court in the Archer claim case, and if the Commercial Credit Corporation was not a privy with Archer, within the meaning of the Code section quoted, the court did not err in overruling the plea. "Privity in estate denotes *** mutual or successive relation to the same right of property; identity of title to an estate." 50 C. J. 407, § 3. "'The general meaning of privies includes those who claim under or in right of parties.' Lipscomb v. Postell, 38 Miss. 476, 490, 77 Am.Dec. 651." Blakewood v. Yellow Cab Company, 61 Ga.App. 149, 6 S.E.2d 126. "A privy in estate is a successor to the same estate, not to a different estate in the same property." Pool v. Morris, 29 Ga. 374, 382, 74 Am.Dec. 68. Thus, in the instant case, while there was a transmission of the title of Grumbine to the plaintiff in error, there was no transmission to it by Archer of his equitable title, and, in so far as the status of the Commercial Credit Corporation at the time of the former suit is concerned, it was in fact merely that of a creditor with security for debt, and so far as its interest in the claim of Archer was concerned, its legal status was that of an outsider, with no opportunity to offer evidence, to cross-examine the witnesses, or to appeal if dissatisfied with the judgment. Blackwell v. Yellow Cab Co., supra. The merchant or seller, Grumbine, reserved the legal title to the automobile and transferred this title to the plaintiff in error. Archer, the innocent purchaser of the automobile, had an equitable title only, and even after Grumbine transferred his legal title Archer still had his equitable title while the Commercial Credit Corporation had only the legal title. Hence, Archer and the Commercial Credit Corporation, while having different estates in the same property, the credit company was not the successor to the estate which Archer possessed when it obtained its legal title, and, hence, the credit company and Archer were not privies as to all matters put in issue. We think that the Archer claim case did not adjudicate the rights of the Commercial Credit Corporation, the claimant in the present case, and that the order of the judge overruling the plea of res judicata was not error. The assignment of error in the cross-bill is not meritorious.

2. We now come to the question raised by the main bill of exceptions-- whether the evidence supported the verdict.

It may be well to note that our Supreme Court has said that the objects of a mortgage and a bill of sale to personalty to secure a debt under the provisions of the Code, § 67-1401 are identical as to security for debt, and in the following language has stated how very similar they are in their nature: "There is a technical difference between a mortgage and a security deed or bill of sale, as provided for in the above-quoted sections of the Code, that difference being that the mortgage does not convey title, but ...