Skinner v. Elliott

• Decision Date: 20 January 1916
• Docket Number: (No. 6622.)
• Citation: 87 S.E. 759,17 Ga.App. 611
• Parties: SKINNER. v. ELLIOTT.
• Court: Georgia Court of Appeals

87 S.E. 759

17 Ga.App. 611

SKINNER.

v.ELLIOTT.

(No. 6622.)

Court of Appeals of Georgia.

Jan. 20, 1916.

(Syllabus by the Court.)

Error from City Court of Waynesboro; W. H. Davis, Judge.

Action by C. W. Skinner against S. J. Elliott. Judgment for defendant, and plaintiff brings error. Affirmed.

H. J. Fullbright, of Waynesboro, for plaintiff in error. E. V. Heath, of Waynesboro, for defendant in error.

RUSSELL, C. J. In the spring of 1914 the defendant executed and delivered to the plaintiff a bill of sale of a mule, in which was a recital that it was given to secure "the sum of $300 advanced and to be advanced to me in provisions and supplies by O. W. Skinner [the plaintiff], and to secure any balance on account or note that I may be due the said C. W. Skinner at any time." The evidence indicated that the defendant had paid to the plaintiff a sufficient sum to discharge all the indebtedness to the plaintiff incurred by him during the year 1914 (except possibly a few cents—an amount so small as to be covered by the maxim de minimis non curat lex), provided that a payment made in January, 1915, had been credited on the 1914 indebtedness instead of being applied as a payment on a prior indebtedness, to which we will now refer.

At the time the bill of sale now before us was executed the plaintiff held a note for $275 for the purchase price of a different mule from the one described in the bill of sale and containing a reservation of title which was signed by the defendant and another, and also held an old note signed by the defendant and two other persons, payable to one Hurst, which had been transferred by him to the plaintiff. The plaintiff had undertaken to credit, on the Hurst note, the payment made in January, 1915, but, in view of the defendant's direction to credit it on the account secured by the bill of sale, we will treat it as properly credited thereon. We have considered the contention of the plaintiff on the subject of the placing of this credit, and, without going into the reasons, we deem it sufficient to say that in our opinion the lower court properly treated this payment as being made upon the indebtedness secured by the bill of sale. The plaintiff brought trover for the mule; the judgment was for the defendant, and the plaintiff excepts.

The question raised by the record, as we construe it, is whether the bill of sale secured the notes which were signed by the defendant as joint maker with other persons, and which were already in existence at the time the bill of sale was executed, as well as the advances and other indebtedness incurred by the defendant himself in 1914.

1, 2. Title to realty or to personalty may be conveyed to secure a present indebtedness, a past indebtedness, or an indebtedness to be incurred in the future. The particular indebtedness to be secured by the instrument, however, is a question of construction, and in some cases a question to be determined upon consideration of proof submitted. However, if the written contract indicates an intention to secure indebtedness of a certain character (for instance, present indebtedness), parol evidence is inadmissible, in the absence of fraud, accident, or mis-take, to show a contrary intention or to ingraft on the contract an agreement that other and further indebtedness was also to be secured. This question is discussed at length in Hester v. Gairdner, 128 Ga. 531, 58 S. E. 165. See, also, Fleming v. Georgia Railroad Bank, 120 Ga. 1023, 48 S. E. 420; Wylly v. Screven, 98 Ga. 213, 25 S. E. 435; McClure v. Smith, 115 Ga. 709, 42 S. E. 53. In Gunn v. Jones, 67 Ga. 398 ...