Skinner v. Bearden

• Decision Date: 18 June 1948
• Docket Number: 31996.
• Citation: Skinner v. Bearden, 77 Ga.App. 325, 48 S.E.2d 574 (Ga. App. 1948)
• Parties: SKINNER v. BEARDEN.
• Court: Georgia Court of Appeals

48 S.E.2d 574

77 Ga.App. 325

SKINNER v. BEARDEN.

No. 31996.

Court of Appeals of Georgia, Division No. 1.

June 18, 1948

Syllabus by the Court

1.The contract involved in this case retained the title to the property sold in the seller until the payment of the purchase price by the buyer.

2.A seller retaining the title to personalty, and taking notes for deferred payments on the purchase price, cannot recover in a trover action against the buyer, upon default in the payment of the notes, without surrendering the notes to the buyer or sufficiently accounting for them.Such an action amounts to a rescission of the contract and the buyer is entitled to protection against the payment of the outstanding notes.

C Wesley Killebrew, of Augusta, for plaintiff in error.

Congdon & Harper and Pierce Bros., all of Augusta, for defendant in error.

PARKER Judge.

This is an appeal from the granting of a motion for nonsuit in a trover case.The motion was granted upon the ground that the plaintiff failed to show title to the property involved.Whether title was shown in the plaintiff depends upon the construction of the bill of sale made by the parties.It recited that it was an 'agreement of bargain and sale,' and for the consideration stated the party of the first part (the plaintiff)'doth by these presents bargain, sell and convey' to the parties of the second part (the defendants) the property described.The consideration was partly in cash with deferred payments at the rate of $125 per month.The bill of sale then contains this paragraph: 'To have and to hold each and all of said personal property unto the said parties of the second part and to their heirs and assigns in fee simple forever.The title to said property is fully warranted.It being understood by all present, that in the event said notes are paid according to their true intent and tenor and meaning then and in that event this agreement of bargain and sale shall operate to convey the full and complete title to the within described personalty unto the said parties of the second part and not otherwise.'The bill of sale was signed by the plaintiff and the defendants.A. C. Bearden, one of the two defendants sued, filed an answer claiming the property and defendant the action alone.

Two questions are presented in this court.Did the contract of sale retain title to the property in the plaintiff until the purchase price was paid?Counsel for the defendant cite no authorities in their brief on this question, but they do contend that the bill of sale did not retain title in the plaintiff.If it did, the nonsuit was improperly granted unless for some other reason the plaintiff failed to make out a case.Was the failure to the plaintiff to deliver the unpaid notes for the deferred payments to the defendant, or to sufficiently account for them, fatal to his right to recover in trover?This last question is made here although it was not made in the court below.

1.'The cardinal rule of construction is to ascertain the intention of the parties.If that intention be clear, and it contravenes no rule of law, and sufficient words be used to arrive at the intention, it should be enforced, irrespective of all technical or arbitrary rules of construction.'Code, § 20-702.'If two clauses in a deed are utterly inconsistent, the former shall prevail; but the intention of the parties, from the whole instrument, shall, if possible, be ascertained and carried into effect.'Code, § 29-109.Many authorities could be cited to the effect that the paramount, essential and controlling rule is to ascertain the intention of the parties in the construction of contracts, as stated in Keith v. Chastain,157 Ga. 1, 121 S.E. 233.The contract was admittedly poorly drawn.This alone would not defeat its purpose if the parties intended that the plaintiff retain title until the purchase money was paid.'However unskillfully a deed may be prepared, it is the duty of the courts to discover and give effect, if possible, to the intent of the parties.'McCraw v. Webb,134 Ga. 579, 581, 68 S.E. 324, 326.'The trend of the modern authorities is toward the restriction of the rule that where there are 'two utterly inconsistent clauses in a deed the former must prevail', and each part of a deed is given effect, if possible.The cardinal rule in the construction of a deed is to ascertain the intention of the parties.'Harmon v. First National Bank,50 Ga.App. 3, 176 S.E. 833, 834.'One of the most important rules in the construction of deeds is to so construe them that no part or words shall be rejected.The courts lean to such a construction as reconciles the different parts, and reject the construction which leads to a contradiction.'Simpson v. Brown,162 Ga. 529(1), 134 S.E. 161, 47 A.L.R. 865.Of course, a deed or other contract should be construed as a whole, and in its entirety, in order to find the true intention of the parties.Lucas v. Lucas,171 Ga. 806, 156 S.E. 680, 76 A.L.R. 737;Sinclair Ref. Co. v. Reid,60 Ga.App. 119, 3 S.E.2d 121.

If the rule that the former of two utterly inconsistent clauses in a deed shall prevail over the latter (Code, § 29-109) is applicable to this bill of sale, and if the clauses in it are 'utterly inconsistent,' within the meaning of that rule, we still think that the parties understood and intended...