Cunningham v. Cureton

• Decision Date: 29 July 1895
• Citation: 23 S.E. 420,96 Ga. 489
• Parties: CUNNINGHAM et al. v. CURETON et al.
• Court: Georgia Supreme Court

23 S.E. 420

96 Ga. 489

CUNNINGHAM et al. v. CURETON et al.

Supreme Court of Georgia

July 29, 1895

Syllabus by the Court.

1. Where an action not founded on an unconditional contract in writing was brought before the pleading act of 1893, having the word "Answered" marked on the issue docket was under the practice prevailing in this state, a sufficient plea of the general issue to authorize the defendant to submit his defense.

2. Where a paper which the law requires shall be attested, as a mortgage on personalty, in order to admit it to record, was not attested at all, the actual record of it was notice to nobody.

3. Where a promissory note was given for the purchase of personal property, the title to which was therein reserved to the seller, although such note may have been executed and made payable in another state, yet, where such property was brought into this state, the reservation of title in the contract of conditional sale embodied in the note was not effective against one who, in good faith, here took a mortgage upon or acquired title to the property without actual notice of such reservation, unless the contract was duly recorded as required by section 1955a of the Code.

4. Machinery, such as planers, molders, belting, shafting, and the like, placed in and attached to a mill in order to carry out the obvious purpose for which it was erected, or to permanently increase its value for use as a manufacturing establishment, and not intended to be moved about from place to place, but to be permanently used with the building becomes a part of the realty, although such machinery may be removable without injury either to itself or the building.

Error from superior court, Dade county; T. W. Milner, Judge.

Petition by S. A. Cunningham & Co. against J. A. Cureton and others to enforce a vendor's lien on personalty. There was a judgment for defendants, and plaintiffs bring error. Affirmed.

J. W Hixon, for plaintiffs in error.

B. T. Brock and R. J. & J. McCamy, for defendants in error.

SIMMONS C.J.

John A. Cureton, the owner of certain mill property in Dade county, Ga., executed to G. W. Cureton a mortgage covering the land on which the mill was situated, the mill and milldam, and "all mill fixtures." The mortgage was executed on July 13, 1891, and was recorded July 17, 1891. The mortgagor and his partner, Bowman, were then operating the mill, and a part of the mill machinery consisted of a planer, belting, and shafting, which they had purchased from Cunningham & Co., of Chattanooga, Tenn., with the understanding that the title was to remain in the vendors until the purchase price should be paid. On July 20, 1891, the mortgagor and Bowman made and delivered to Cunningham & Co. a note for the purchase price of this machinery, containing a reservation of title in the vendors until the note should be paid. On July 22, 1891, three notes containing a like reservation of title were made and delivered to Cunningham & Co. by the same parties for the purchase price of a molder which had been shipped to them on July 13, 1891. The molder was attached to the floor by bolts, and all the machinery was "placed there to stay." The notes were recorded on February 4, 1892, without probate, none of them having a subscribing witness. Subsequently G. W. Cureton, having foreclosed his mortgage, caused the mill property to be sold, and at the sale bought the property himself, and took possession of it. Cunningham & Co. thereupon filed their equitable petition, alleging that the machinery which they had sold to John A. Cureton and Bowman was not covered by the mortgage given to G. W. Cureton, and praying judgment against John A. Cureton and Bowman on the notes; that a lien be declared in their favor on the machinery, superior to any other lien; that the machinery be sold in satisfaction of said lien; and that G. W. Cureton account to them for the rent of the machinery, etc.

1. The suit was filed in September, 1893. No plea or answer was filed at the appearance term, but the bench docket was marked "Answered." When the case came on to be tried at the September term, 1894, it was agreed by counsel that it should be tried by the judge without a jury. The plaintiffs' counsel then moved to take judgment by default because no answer had been filed. The motion was overruled, and to this ruling they excepted. The court did not err in overruling the motion. As the law stood prior to the adoption of the pleading act of December 15, 1893, the marking of "Answered" on the docket was a sufficient plea of the general issue to authorize the defendant to submit his defense. Simon v. Myers, 68 Ga. 74; Russell v. Hubbard, 76 Ga. 618; Barrett v. Pascoe, 90 Ga. 826, 17 S.E. 117.

2, 3. The reservation of title in the vendors of the machinery having been recorded without due attestation or probate, the record did not operate as constructive notice to the mortgagee (Code, § § 1955a, 1959); and it was admitted that he did not have actual notice prior to the execution of the mortgage. Moreover, there could not be any reservation of title, as against third persons, unless the contract was attested in the manner prescribed by the statute. Bank v Cottrell (decided at this term) 23 S.E. 127. It was...