Mathewson v. Brigman Motors Co.
| Decision Date | 16 January 1919 |
| Docket Number | 9904. |
| Citation | 98 S.E. 98,23 Ga.App. 304 |
| Parties | MATHEWSON ET AL. v. BRIGMAN MOTORS CO. |
| Court | Georgia Court of Appeals |
On Motion for Rehearing, Jan. 28, 1919.
Syllabus by the Court.
The defendant in error sued out in the municipal court of Atlanta a possessory warrant against the plaintiffs in error for a certain motor truck, and the judge of the municipal court, on the hearing before him, awarded the possession to the plaintiff, whereupon the defendants, by petition for certiorari, took the case to the superior court, and the certiorari was by that court denied, to which ruling defendants excepted. Held, "in a possessory warrant proceeding there is no question as to the title or as to the right of possession of the property in controversy the sole question is as to the manner in which the possession was acquired by the defendant." Oaks v. Singer Sewing Machine Co., 17 Ga.App. 517, 87 S.E. 719; Trotti v. Wyly, 77 Ga. 684.
Where a vendor sells certain property, to be paid for in installments by the vendee, and enters into a written contract with the vendee, retaining the title to the property, with a stipulation in the contract that, if any of the installments are not paid, the vendor "shall have the right to take possession of said property without any legal process, and all payments made up to the time of default shall be applied as rental for said property and depreciation in value," the contract is one of conditional sale, and not of lease ( Rhodes Furniture Co. v. Jenkins, 2 Ga.App. 475, 478 58 S.E. 897); but where the vendee defaults as to some of the payments, the vendor, as between himself and the vendee nevertheless has the right, under the contract, so far as mere possession of the property is concerned, to remove it without any legal process (Wilmerding v. Rhodes-Haverty Furniture Co., 122 Ga. 312, 50 S.E. 100); yet where a third person, in good faith and without any notice of such conditional sale contract, has acquired the property from the vendee, and is in possession of it in a quiet, peaceable, and lawful manner, and such possession is taken from him by the vendor, without any legal process and with out his consent and against his will, he is entitled to a judgment in his favor in a possessory warrant proceeding instituted by him against the vendor, since the scope of such a proceeding is limited as indicated above. Civ. Code 1910, § 5371; Marchman v. Todd, 15 Ga. 25; Broadhurst v Carswell, 119 Ga. 529, 46 S.E. 658; Copeland v. Lucas, 6 Ga.App. 6, 64 S.E. 113; Oaks v. Singer Sewing Machine Co., supra.
(a) The judge of the municipal court was authorized, under the facts of this case, to find that the plaintiff acquired possession of the property in dispute in good faith, and without notice of the conditional sale contract existing between Matthewson & Lane, defendants and vendors, and J. W. Bowen, vendee, and that it was in the quiet, peaceable, and legally acquired possession of the property at and before the time possession thereof was taken by defendants, without legal process and without plaintiff's consent.
The assignments of error not disposed of by the foregoing rulings are without substantial merit.
Additional Syllabus by Editorial Staff.
A recital in a note that it is given in pursuance of a specified contract is sufficient to charge even a purchaser of the note with knowledge of the contract to which such reference is made.
It is a general rule that, where instruments are executed at the same time, for the same purpose, and in the course of the same transaction, they are to be read and construed together.
Where truck was sold under contract of conditional sale, stipulating that, on default in payment of installments, seller might take possession without legal process and apply payments to rentals, a lessee from buyer, under lease mentioning certain unpaid purchase-money notes, who agreed with lessor that they should be first satisfied out of future profits from use of truck, was not charged with notice of terms of conditional sale contract, or put upon inquiry as to its terms.
Error from Superior Court, Fulton County; J. T. Pendleton, Judge.
Possessory proceedings by the Brigman Motors Company against J. H. Mathewson and others. Judgment awarding possession to plaintiff, defendants' petition for certiorari denied, and defendants bring error. Affirmed.
Robt. C. & Philip H. Alston, of Atlanta, for plaintiffs in error.
Westmoreland, Anderson & Smith, of Atlanta, for defendant in error.
Judgment...
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Mathewson v. Rr1gman Motors Co
... ... T. Pendleton, Judge.Possessory proceedings by the Brigman Motors Company against J. H. Mathewson and others. Judgment awarding possession to plaintiff, defendants' petition for certiorari denied, and defendants bring error. Affirmed.Robt. C. & Philip H. Alston, of Atlanta, for plaintiffs in error.Westmoreland, Anderson & Smith, of Atlanta, for ... ...