Shippen v. Ga. Power Co

• Decision Date: 13 June 1931
• Docket Number: No. 8306.,8306.
• Citation: Shippen v. Ga. Power Co, 159 S.E. 268, 172 Ga. 913 (Ga. 1931)
• Parties: SHIPPEN. v. GEORGIA POWER CO. et al.
• Court: Georgia Supreme Court

172 Ga. 913

159 S.E. 268

SHIPPEN.

v.GEORGIA POWER CO. et al.

No. 8306.

Supreme Court of Georgia.

June 13, 1931.

Syllabus by the Court.

The trial judge, to whom this case was submitted for determination without a jury, did not err, for any reason assigned, in the judgment refusing an injunction, and thereafter in denying the motion for new trial.

Error from Superior Court, Fulton County; Edgar E. Pomeroy, Judge.

Petition by W. H. Shippen against the Georgia Power Company and others. Judgment for defendants, plaintiff's motion for new trial was overruled, and plaintiff brings error.

Affirmed.

Clark Ray, Roy S. Drennan, and R. B. Giles, all of Atlanta, for plaintiff in error.

Ray Williams and Colquitt, Parker, Troutman & Arkwright, all of Atlanta, for defendants in error.

SEARCY, J.

The record discloses the following facts: The Georgia Power Company sold to H. R. Wagar certain kitchen and refrigeration equipment, and this was installed in an apartment house belonging to Wagar. There was executed and delivered to Georgia Power Company by Wagar, at the time of this sale, a contract in writing setting forth the terms of sale and reserving title to this equipment in the Georgia Power Company until the purchase price thereof was fully paid. On October 29, 1928, this contract was filed for record in the clerk's office of Fulton superior court, and its filing was entered on the index, or filing docket, kept by the clerk for the purpose of showing mortgages and other papers relating to personal property, and was not entered on the index, or filing docket, showing mortgages and other papers relating to real estate. Thereafter, on March 1, 1929, Wagar sold the apartment house to Mrs. Rosa Belle Morris, conveying the same by warranty deed which contained this recital: "Party of the second part also assumes and agrees topay a series of monthly notes in the aggregate amount of $4140.00 at the present time, due for the refrigeration equipment located in the building on the said property above described." In turn, the grantee in the deed, Rosa Belle Morris, executed and delivered to Modern Apartments, Inc., a warranty deed to secure the unpaid balance of the purchase price of the apartment; and the security deed contained the following recital: "And also subject to a series of monthly notes in the aggregate amount of $3743.00 at the present time, due for the refrigeration equipment located in the building on said property described above." The only refrigeration equipment in this building located on the described premises was that sold to Wagar by Georgia Power Company and described in the contract above referred to, retaining title thereto in Georgia Power Company until the purchase price was paid in full.

On June 17, 1929, Modern Apartments, Inc., sold and transferred the notes and security deed held by it to.A. N. Canton, who in turn sold and transferred the same to his wife, Mrs. Eleanor L. Canton. Mrs. Rosa Belle Morris, maker of the notes, defaulted in payment of them, and Mrs. Canton foreclosed under the security deed held by her and purchased the property at the foreclosure sale. Thereafter Mrs. Canton, by warranty deed dated November 28, 1930,...