Miller v. First Nat. Bank Of Madison

• Decision Date: 20 April 1926
• Docket Number: (No. 16970.)
• Parties: MILLER. v. FIRST NAT. BANK OF MADISON.
• Court: Georgia Court of Appeals

35 Ga.App. 334

132 S.E. 783

MILLER.

v.FIRST NAT. BANK OF MADISON.

(No. 16970.)

Court of Appeals of Georgia, Division No. 2.

April 20, 1926.

(Syllabus by the Court.)

Error from City Court of Madison; E. R. Lambert, Judge.

Proceeding in execution by the First National Bank of Madison against H. L. Malone and another, in which Mrs. Fred B. Miller interposed claim. Judgment for plaintiff in fi. fa., and claimant brings error. Reversed.

The evidence in this case is undisputed. The attorney for the claimant, Mrs. Miller, testified:

Mrs. Miller "wrote me that W. H. Malone owed her and she wanted it secured. I saw him, and he said the only thing he had to secure her with was his automobile. I told him she would take title to it, and he gave her that paper."

The paper referred to purports to be a purchase-money conditional sale note, and was dated July 27, 1922, and was duly recorded on August 5, 1922. It recites as follows:

"This obligation is given for purchase money of the following described property, to wit: One seven-passenger Buick automobile, model E-49, engine number 421930, being the car I have been driving and the only car I own. The title remains in the payee hereof until this note with interest and attorney's fees are paid in full."

On August 12, 1922, a judgment in favor of the First National Bank of Madison was obtained against H. L. Malone, as principal, and the said W. H. Malone, as indorser. An exception based thereon was, on October 4, 1922, levied on the automobile described in the conditional sale note, and Mrs. Miller interposed a claim to the automobile, based on that instrument. No attack was made upon the bona fides of the transaction between W. H. Malone and Mrs. Miller. The jury found in favor of the plaintiff in fi. fa. The claimant's motion for a new trial was overruled, and she excepted. The contention of the plaintiff in fi. fa. is that since it appears that the automobile was the property of W. H. Malone, before the execution of the note, as shown by the instrument itself, and sinceit does not appear that the machine was actually delivered to Mrs. Miller under any oral contract of sale, or any sale in writing by Malone to her, Mrs. Miller had never owned or possessed and had never sold or delivered the automobile to Malone, so that title could be retained by her under the instrument upon which she relies.

E. H. George, of Madison, for plaintiff in error.

Q. L. Williford, of Madison, for defendant in error.

JENKINS, P. J. Section 4268(3) of the Civil Code 1910 provides that—

"The construction which will uphold a contract in whole and in every part is to be preferred, and the whole contract should be looked to in arriving at the construction of any part."

Section 4266 of the Civil Code 1910 provides that—

"The cardinal rule of construction is to ascertain the intention of the parties. If that intention be...