Smith v. De Vaughn

• Decision Date: 23 March 1889
• Citation: 9 S.E. 425,82 Ga. 574
• Parties: SMITH v. DE VAUGHN.
• Court: Georgia Supreme Court

9 S.E. 425

82 Ga. 574

SMITH v. DE VAUGHN.

Supreme Court of Georgia

March 23, 1889

Error from superior court, Dooly county; KIBBEE, Judge.

Martin & Smith, for plaintiff in error.

George W. Buzbee, for defendant in error.

SIMMONS J.

De Vaughn sued Mary A. Smith in an action of trover and bill for a mule. On the trial the plaintiff introduced the following instrument in writing:

"$232.80. MONTEZUMA, GA.,

Jany. 16th, 1886.

"On the first day of October next, I promise to pay J. E. De Vaughn, or order, the sum of $232.80, for value received and, to secure the payment of this note, I hereby mortgage and convey unto the said payee, his heirs and assigns, the following described property to-wit: one dark mare mule named 'Queen,' about ten years old, for which this note is given in part, said mule to remain the property of J. E. De Vaughn until paid for." (Then follows a waiver of homestead and exemption, and of exemption from garnishment and the instrument is signed by Win chew Smith in the presence of two witnesses, one a magistrate, and recorded about 10 months after its date.)

The only question in this case is whether the above instrument was a mortgage, or a conditional sale, with reservation of title in De Vaughn. The court below held that it was a conditional sale, with reservation of title, and so instructed the jury. A verdict was returned for the plaintiff, and the defendant excepted.

We think the court was right in its ruling. While the instrument is somewhat anomalous in its character, under the facts of the case disclosed by the record, we do not think that it was intended by the parties as a mortgage, so far as the price of the mule was concerned. The husband of the defendant purchased this mule from the plaintiff, De Vaughn. De Vaughn held the title to the mule at the time of the purchase, and so far as the price of the mule was concerned, there was no prior indebtedness between De Vaughn and Smith. The title being in De Vaughn, he had a right, under the law, to reserve the same until the purchase price of the mule was paid. He did reserve it in the instrument itself, as will be seen by reference thereto. If Smith had paid the purchase money for the mule, he would then have acquired title thereto, and it is possible that the instrument might have been foreclosed as a mortgage for the $80 of the old indebtedness incorporated in this instrument, and this may have been the reason...