Jackson v. Moultrie Prod. Credit Ass'n
| Decision Date | 05 March 1948 |
| Docket Number | No. 31840.,31840. |
| Parties | JACKSON. v. MOULTRIE PRODUCTION CREDIT ASS'N. |
| Court | Georgia Court of Appeals |
Rehearing Denied March 31, 1948.
Syllabus by the Court.
1. Where the owner of personalty stands silently by and knowingly permits his son, who has the property in his possession, to convey it by bill of sale to secure a loan contemporaneously made by a third person to his son, he will be estopped to assert his title as against such bill of sale to secure debt.
(a) Where the claimant testified that he was hard of hearing and had been so afflicted for many years and there was evidence to the effect that the claimant on several occasions immediately prior to the trial had not given any appearance of being hard of hearing, whether or not the claimant heard a statement made in his presence to his son was an issue of fact for the jury.
(b) The verdict in favor of the plaintiff was authorized by the evidence.
2-7. The charges complained of in special grounds 4, 5, 6, 7, 8, 9 and 10 of the motion were authorized under the pleadings and the evidence in the case and were not error for any reason assigned, and the court did not err in overruling these grounds of the motion.
8. The conduct of a trial must largely be left to the discretion of the trial judge, and that discretion will not be controlled by this Court, unless it is manifestly abused. Under the circumstances of this case, any error in the conduct of counsel for the plaintiff was cured by the prompt rebuke given him by the judge in the presence of the jury, and the judge did not err in overruling the claimant's motion for a mistrial.
9. The objection here to the admission of the evidence referred to in special ground 12 that it was "immaterial and irrelevant, " and in special grounds 13, 14, and 15 on the ground that "it had nothingto do with the case on trial" was too general and was insufficient to present anything for consideration.
(a) Furthermore, a ground of a motion for a new trial based on the admission of evidence presents nothing for adjudication, where such evidence is not set out in the ground, Either literally or in substance, nor attached to the motion as an exhibit.
10. The testimony set out in special ground 16 of the motion was not inadmissible for the reason assigned and the objection raised to its admission was too incomplete to show harmful error as against the claimant.
11. The verdict is supported by the evidence, no error of law appears, and the judge did not err in overruling the motion for a new trial.
Error from City Court of Colquitt County; Robert H. Cranford, Judge.
Proceeding by the Moultrie Production Credit Association against Paul Jackson for foreclosure of a bill of sale given to secure a debt to the plaintiff, wherein D. C. Jackson filed a claim to the property covered by the bill of sale, alleging that the property belonged to him. To review a judgment for the plaintiff, D. C. Jackson brings error.
Judgment affirmed.
Paul Jackson executed a bill of sale to secure debt to Moultrie Production Credit Association to certain personal property, including a certain tractor and equipment. This bill of sale recited it was given to secure a note executed by Paul Jackson to Moultrie Production Credit Association and that "if any of the security aforesaid shall be diminished or in danger of loss, removal or destruction, lender, its successors and assigns, may, without notice, declare all indebtedness secured hereby due. * * * " The note secured by this bill of sale to secure debt recited that it was due on August 15, 1946. On June 28, 1946, the attorney for the credit association made affidavit that "he is attorney at law for the holder of a bill of sale to secure debt, a true copy of which is hereto attached; that Paul A. Jackson, the maker of said bill of sale is a resident of Colquitt County and is indebted to the Moultrie Production Credit Association on said bill of sale in the sum of $1,500, principal, $33.44 interest to date and that the amount of said sums is now due, and he makes this affidavit for the purpose of foreclosing said bill of sale to secure debt." An execution was issued on the above affidavit and levied upon the tractor and equipment described in the bill of sale to secure debt. D. C. Jackson filed a claim to the property, alleging that it was not the property of Paul Jackson but was the property of claimant.
On the trial of the issues thus raised, the plaintiff placed in evidence the execution and levy. The secretary-treasurer of the plaintiff testified to the effect that when the defendant in execution made application for the loan he went to see him at the claimant's house; that the claimant, the defendant, and two other men were out in the front yard, and the claimant was standing as close to him "as from here to the window or a little closer"; that he told the defendant in the presence of the claimant that he had come to inspect the tractor the defendant wanted to obtain a loan on, and the defendant said it was over in a field and they went to see it; that after the execution of the bill of sale to secure debt he asked the claimant if the tractor at the defendant's farm was the one the plaintiff had the loan on with the defendant, and the claimant said that it was. Otis G. Turner testified substantially to the effect that Paul Jackson came to him about buying the tractor and he told him he had to purchase all the equipment that went with it before he would sell the tractor, and that Paul Jackson did not have the money to buy it; that he said he would have to see someone else before trading; that he came back and said that his father, the claimant, was to help him buy the tractor: that the witness saw the claimant and he said show the tractor to Paul and that if it met with Paul's approval claimant would pay for it; that he sold him the tractor and equipment; that Paul Jackson neverpaid anything on it but that the claimant paid him for it in two checks, one for $200 and one for $1000; that he had the claimant make the payment in two checks because he was doubtful whether $1200 came within the ceiling price of the tractor, but later found that it did. The plaintiff introduced in evidence an action in trover between Otis Turner and Paul Jackson, the bond given, the answer, and a motion for a new trial, which had been dismissed, by Paul Jackson in that case. The plaintiff also introduced a certain indictment against Paul Jackson and his plea of insanity, and a verdict against the plea, all dated long after the execution of the bill of sale to secure debt in question.
The claimant testified to the effect that he could not hear very well and had not been able to hear good in many years, but was being treated for it without success; that he could answer questions by reading the lips of those talking to him; that he was the father of Paul Jackson; that the tractor in question belonged to claimant and he had never authorized his son to mortgage it; that when his son came back from the recent war he wanted to help him and sent him to look at the tractor and his son said that was what he wanted; that he paid for the tractor but did not give it to his son; that he had never told the plaintiff's agents that the tractor belonged to his son; that his son was acting as his agent in buying the tractor; that he purchased the tractor for his son to use and paid for it, and that he had to buy the other equipment, which he did not need, to get the tractor, which was needed to operate a peanut picker; that the tractor was at his home part of the time. The two checks executed by the claimant to Turner in payment for the tractor and equipment were placed in evidence. The claimant also placed in evidence the application for loan and the note executed by Paul Jackson to the plaintiff. There was other evidence which we do not deem necessary to set out.
The jury returned a verdict in favor of the plaintiff, finding the property subject to the levy. The claimant's motion for a new trial, as amended, was overruled and he excepted.
P. Q. Bryan, of Moultrie, for plaintiff in error.
Hoyt H. Whelchel, of Moultrie, for defendant in error.
SUTTON, Chief Judge (after stating the foregoing facts).
1. The claimant contends that the verdict, finding the property subject to the levy, is without evidence to support it, and that the judge erred in overruling the general grounds of motion for a new trial. It is the contention of the plaintiff that the evidence authorized the jury to find that the title to the tractor was in Paul Jackson or that the claimant was estopped by his conduct from claiming the tractor.
The jury was authorized to find from the evidence that the claimant purchased the tractor and turned it over to his son to use and that his son had possession of the tractor at the time he made application to the plaintiff for a loan and at the time he executed the bill of sale to secure debt to the plaintiff conveying the tractor to secure his note; that when the agent of the plaintiff came to the claimant's home to inspect the tractor, before making the loan, he found the defendant and the claimant standing near each other and that the claimant was near enough to have heard the conversation between him and the defendant, if the claimant had been a man of ordinary hearing; that the claimant had not given any indication of being hard of hearing on previous occasions and that the claimant should have, and probably did hear the conversation between the plaintiff's agent and his son about the tractor which his son represented he owned, and that the claimant did not deny his son's ownership of the tractor at that time. While the claimant testified that he was hard of hearing, whether or not he heard the conversation between the plaintiff's agent and his son was, under the evidence of the case, a question of fact for the jury. In this connection, see Watson v. State, 136 Ga. 236, 238, 71 S.E....
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