Flemming v. Drake
| Decision Date | 26 February 1927 |
| Docket Number | 5443. |
| Citation | 137 S.E. 268,163 Ga. 872 |
| Parties | FLEMMING v. DRAKE et al. |
| Court | Georgia Supreme Court |
Error from Superior Court, Early County; M. J. Yeomans, Judge.
Action by S.W. Flemming against Chester A. Drake and another. Judgment for defendants, and plaintiff brings error. Affirmed.
P. Z Geer, of Colquitt, for plaintiff in error.
A. H Gray, of Blakely, for defendants in error.
Syllabus OPINION.
Flemming Motor Company instituted an action in the superior court of Early county against Chester A. Drake, a resident of Early county, and Jesse A. Drake, a resident of Miller county. The action was in part in the nature of a bail in trover to recover a described automobile of a stated value, alleged to be in the possession of Chester A. Drake, and in part an equitable suit to reform a written contract of conditional sale executed by the plaintiff as vendor and Jesse A. Drake as vendee, containing reservation of title in the vendor until a stated balance of the purchase price should be paid. The action was instituted several months after the property in dispute was delivered by the vendor to the vendee. It was alleged that the instrument sought to be reformed, by mutual mistake of the parties, failed to describe the automobile that was actually sold and delivered to the purchaser and now in controversy, but described a different automobile, and that reformation was desired in order to make the instrument express the true contract. The petition contained four counts which were identical, except paragraph 10 of each count. It was alleged that Chester A. Drake was not a bona fide purchaser of the automobile from his brother, Jesse A. Drake, for the several reasons: (1) Because he knew, or by ordinary care could have known, that the reservation of title in the contract was intended to cover the car in his possession; (2) because the car was merely "turned *** over" to him by Jesse A. Drake "for some purpose unknown to" plaintiff; (3) because "he has not paid one cent" to Jesse A. Drake for the car; (4) because Jesse A. Drake "merely delivered" the car to him "without receiving one penny" for the same. Chester A. Drake filed a demurrer on the grounds that the petition fails to allege a cause of action against him; that the petition is multifarious; and that there is a misjoinder of parties defendant. Other grounds of demurrer related to special paragraphs of the petition. Jesse A. Drake filed a demurrer on the grounds that the petition fails to allege a cause of action against him; that it appears from the petition that he is a resident of Miller county, and the superior court of Early county is without jurisdiction, it appearing that the petition prays for equitable relief against this defendant alone, and does not ask for substantial relief against any defendant or party resident in Early county; that there is a misjoinder of parties defendant; and that the petition is multifarious. The court sustained the "general demurrers of both defendants," and dismissed the petition. The exception is to this judgment on the ground that it is contrary to law.
1. An objection to a petition on the ground that it shows upon its face a want of jurisdiction may be raised by general demurrer. Ruis v. Lothridge, 149 Ga. 474, 100 S.E. 635. The judgment upon which error is assigned should be construed as sustaining the demurrer relating to jurisdiction, as well as all other grounds of general demurrer.
2. Civil Code 1910, § 3318, declares:
This statute is in the nature of a statute of frauds ( Merchants' & Mechanics' Bank v. Cottrell, 96 Ga. 168, 23 S.E. 127), and the clause "every such conditional sale, in order for the reservation of title to be good as against third parties, shall be evidenced in writing, and not otherwise," outlaws all such reservations of title as against third persons where the contract is not in writing. This principle is the basis of the decisions in the cases of Mann v. Thompson, 86 Ga. 347, 12 S.E. 746; Austin v. Hamilton, 96 Ga. 759, 22 S.E. 304; Wood v. Evans, 98 Ga. 454, 25 S.E. 559; Harp v. Patapsco Guano Co., 99 Ga. 752, 27 S.E. 181; Penland v. Cathey, 110 Ga. 431, 35 S.E. 659; Farmers' Bank of Doerun v. Avery, 145 Ga. 449, 89 S.E. 409. See, also, In re Atlanta News Pub. Co. (D. C.) 160 F. 519. The statute was construed as above by all the justices in Rowe v. Spencer, 140 Ga. 540, 79 S.E. 144, 47 L.R.A. (N. S.) 561; but the "reservation of title" was sustained by the majority opinion, under the peculiar facts of the case, as against a bona fide purchaser for value from the vendee. The facts were that the parol conditional sale agreement was made about midday, and reduced to writing before delivery of the property, but not signed, because there was not notary to attest the paper. It was carried by the vendee with the property to another town, to be signed by him and his father and attested by a notary, and mailed back the next morning to the vendor. It was duly signed by the vendee alone, attested, mailed back to the vendor, and subsequently recorded as provided by law. However, a few hours after the conditional sale agreement was reduced to writing, and before it was signed, the vendee sold the property at a fair value to a purchaser without notice of the agreement. The reservation of title was sustained on the theory that the whole conditional sale transaction was "in fieri" at the time the property was delivered, and until the contract was signed and mailed back to the vendor the next morning, and that it was thereafter duly recorded, thus making the writing and signing and delivery of the paper contemporaneous with delivery of the property. Lumpkin, J., forcefully dissented from this view, stating that it contravened the mandatory provisions of the statute, and that the vendor acted at his peril in delivering the property before the written contract was signed.
"Third parties," as employed in the statute, of course include creditors, but it has never been held by this court to include creditors alone. A restriction such as that would exclude purchasers who deserve protection certainly as much as pre-existing creditors who did not extend credit to the vendee on the faith of his ownership of the property. Several of the above-cited cases refer to creditors of that class. The proper construction of the statute is that "third parties" should be construed literally, and that as to them it is essential to a vendor's reservation of title that the conditional contract of sale be in writing. The statute thus construed tends to prevent perjury, to discourage fraud, and accomplish security of property, which was evidently the intention of the Legislature in enacting the law. In the present case, if the Flemming Motor Company sold and delivered the automobile to Jesse A. Drake under a parol agreement that title should remain in the vendor until the purchase price should be paid, the reservation of title would be valid as against said vendee,...
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