Smith v. Commercial Credit Co., Inc.

• Decision Date: 20 March 1922
• Docket Number: 12780.
• Citation: 111 S.E. 821,28 Ga.App. 403
• Parties: SMITH v. COMMERCIAL CREDIT CO., INC.
• Court: Georgia Court of Appeals

111 S.E. 821

28 Ga.App. 403

SMITH v. COMMERCIAL CREDIT CO., INC.

No. 12780.

Court of Appeals of Georgia, Second Division

March 20, 1922

Rehearings Denied April 1, 1922, and May 6, 1922.

Syllabus by the Court.

Where a defendant in an action of trover admits in his plea or answer his possession of the property at the time of the action under an adverse claim of title or right of possession, it is not necessary for the plaintiff to prove a demand and refusal or any other conversion of the property. Civ. Code 1910, § 4483; Muse v. Wright, 103 Ga. 783, 784, 30 S.E. 662; Moore v. Ramsey, 144 Ga. 118 (1), 86 S.E. 219; Young v. Durham, 15 Ga.App. 678 (5), 84 S.E. 165; Pearson v. Jones, 18 Ga.App. 448 (4 [a]), 89 S.E 536; Collins v Hilton, 27 Ga.App. 439, 108 S.E. 824 (2).

Where property has been seized by a sheriff under bail process and, after a failure by both parties in the trover proceeding to replevy, has been sold by the officer under section 5153 of Civil Code 1910, as being perishable or expensive to keep the successful plaintiff in the suit is not entitled to elect a verdict and judgment for the property under sections 5929 and 5930. The provisions of the first-mentioned statute are intended both to limit the plaintiff to a "money verdict for the amount of the proceeds of such sale, together with hire or interest from the date of conversion to the date of seizure," and to fix by such amount of proceeds the maximum recovery for the value of the property, which, under the general rule in trover actions, is "the highest proved value of the property at any time between the date of the conversion and the trial, or its value at the date of the conversion, with interest from that date." Civ. Code 1910, § 4514; Mashburn v. Dannenberg Co., 117 Ga 567 (15), 44 S.E. 97; O'Neill Mfg. Co. v. Woodley, 118 Ga. 114 (1), 116, 44 S.E. 980; Tuller v. Carter, 59 Ga. 395 (2); Langdale v. Bowden, 139 Ga. 324 (2), 77 S.E. 172; Smith v. Duke, 6 Ga.App. 75 (2), 64 S.E. 292.

(a) The fact that the plaintiff himself is the purchaser of the property at such a sale by the sheriff will not estop or preclude him from claiming the money verdict to which alone he is entitled under section 5153, for the reason that, as the purchaser at such judicial sale, he has acquired a new title upon payment of the amount of his bid, and thereafter such proceeds "in contemplation of law, stand in lieu of the property itself." Glisson v. Heggie, 105 Ga. 30, 34, 31 S.E. 118, 119; Hudson v. Goff, 77 Ga. 281 (1), 3 S.E. 152; Mallary v. Moon, 130 Ga. 591, 592, 61 S.E. 401.

Where a vendor under a contract of sale retains title to personalty until full payment is made of the purchase price, and, after the vendee has made partial payments, brings an action of trover to recover possession, the vendee is not entitled to set up as a defense a right of possession in himself because of the vendor's failure to return such payments; nor, where the vendor elects a money verdict, can the vendee demand a return of such sums as a condition precedent to the verdict and judgment; but in such a case, where the vendee has failed to set up any plea of set-off or recoupment for damages under section 4484 of Civil Code 1910, and has only pleaded such payments, he is merely entitled to a deduction thereof, and the vendor should recover only the excess in the value of the property and its hire over and above the total amount paid, with the condition that the recovery shall not exceed the unpaid balance of the principal debt and interest thereon. Thomason v. Moore, 139 Ga. 341 (3, 4), 77 S.E. 155; Bradley v. Burkett, 82 Ga. 255 (2), 257, 11 S.E. 492; Guilford v. McKinley, 61 Ga. 230, 232; Hays v. Jordan, 85 Ga. 742 (2), 750, 751, 11 S.E. 833, 9 L.R.A. 373; Commercial Pub. Co. v. Campbell Co., 111 Ga. 388 (2), 389, 390, 36 S.E. 756; Moultrie Repair Co. v. Hill, 120 Ga. 730 (5), 732, 48 S.E. 143; Ross v. McDuffie, 91 Ga. 120 (3), 16 S.E. 648; Fussell v. Heard, 119 Ga. 527 (1), 46 S.E. 621; Benton v. Harley, 21 Ga.App. 168 (2), 94 S.E. 46; Young v. Durham, 15 Ga.App. 678 (1), 84 S.E. 165; Elder v. Woodruff Hardware Co., 9 Ga.App. 484, 71 S.E. 806; Jones v. May, 27 Ga.App. 152, 107 S.E. 897. Where the property after seizure has been sold by the sheriff under section 5153, Civil Code 1910, the vendor's recovery is further limited by the amount of such proceeds under the rule in the last preceding division of the syllabus. The recovery in the instant case did not exceed the amount of money verdict to which plaintiff was entitled under the rules stated.

A vendor who has taken a note for the purchase price of personalty and has reserved title in himself until full payment of the purchase money cannot, in an action of trover for the property after a default in payment, recover the value of the property from the vendee until the note has been delivered up to him or has been sufficiently accounted for so that the vendee will incur no further risk of liability thereon. Tidwell v. Burkett, 81 Ga. 84, 85, 6 S.E 816; Glisson v. Heggie, 105 Ga. 30, 33, 31 S.E. 118; Moultrie Repair Co. v. Hill, 120...