Opinion
32844.
DECIDED FEBRUARY 24, 1950.
Trover; from Fulton Civil Court — Judge Robert Carpenter. November 2, 1949.
Frank A. Bowers, Frank Grizzard, for plaintiffs in error.
Samuel Green Jr., contra.
1. The principle of election of remedies applies as between inconsistent remedies only, and has no application to the facts of this case.
2. Under the facts of the instant case, a discharge in bankruptcy relieved the defendants of their debt, but did not discharge the lien against the property involved.
DECIDED FEBRUARY 24, 1950.
This is a trover action brought by the Community Loan and Investment Corporation, whom we shall call the plaintiff, against Charlie and Willie Mae Allen, whom we shall call the defendants. To better understand the issues involved in the trover action we think it well to summarize, somewhat, the history of the transaction preceding the trover action. On September 6, 1947, the defendants executed to the plaintiff a note and bill of sale to secure a debt of $421.28. This instrument waived homestead exemption and embraced in it a provision that upon default of the conditions of the instrument the defendant would deliver the property described in the bill of sale to the plaintiff for the purpose of allowing a sale of the same to satisfy the debt. The said bill of sale to secure debt was properly recorded. Thereafter, when the debt became due, the defendant filed an equitable petition in the Superior Court of Fulton County against the plaintiff complaining that the defendants had made the debt above mentioned and had executed the bill of sale, but that the transaction was infected with usury. The plaintiff filed a cross-bill asking for and receiving in that equitable suit a judgment in personam for $386.10. Judgment was entered in favor of the plaintiff. No equitable relief prayed for by the defendant in that action was granted. Thereafter, at a subsequent term of Fulton Superior Court, the plaintiff filed a motion asking that the said judgment for $386.10 be amended so as to provide that the judgment be a special lien against the property described in the bill of sale to secure debt. To this motion on the part of the plaintiff the defendants filed objections in which they contended that after the judgment was entered, both of them had filed voluntary bankruptcy proceedings in the United States District Court, Atlanta. And in those proceedings the defendants alleged that they had duly scheduled the judgment of $386.10 as an unsecured claim. It does not appear that they filed the personal property pledged as security for that debt as an asset. The judge of the superior court allowed the motion of the plaintiff and amended the judgment to provide that the prior judgment be a special lien against the property described in the bill of sale. The defendants objected to that judgment setting up such a special lien and assigned error thereon by a bill of exceptions to this court. This court in a decision as appears in the case of Allen v. Community Loan Investment Corp., 78 Ga. App. 611 ( 51 S.E.2d 872), reversed the judgment of the superior court amending the judgment of $386.10 to make it a special lien against the property described in the bill of sale. This court held that such judgment could not be so amended at a subsequent term of the superior court. After such decision by this court and after both the defendants had secured their discharge, the plaintiff instituted the trover action which is now before us. In the trover action the defendants filed a plea of res judicata, and a plea of bankruptcy (in bar), and an answer. The Civil Court of Fulton County found against the plea of res judicata, and entered judgment in favor of the plaintiff for the property involved.
The defendants contend that the judgment of the Civil Court of Fulton County should be reversed because the election of remedies applies in the subject-matter of this suit, and that the plaintiff should be estopped from pursuing a different remedy after having failed to successfully prosecute its first remedy. Second, that the Civil Court of Fulton County erred in giving judgment for the property, since this court had previously ruled the corporation was not entitled to a special lien against the property. As to the first contention, we do not think that the principle of law with reference to election of remedies is applicable. The doctrine of election of remedies compels an election only as between inconsistent remedies. To apply for and obtain a judgment in personam and thereafter to prosecute a lien on specific property is not an inconsistent remedy. Therefore, the authorities cited by the defendants, to wit, Kennedy v. Manry, 6 Ga. App. 816 ( 66 S.E. 29), Equitable Life Assurance Society v. May, 82 Ga. 646 ( 9 S.E. 597), Board of Education v. Day, 128 Ga. 156 ( 57 S.E. 359), Chapple v. Hight, 161 Ga. 631 ( 131 S.E. 505), Adkins v. Dannenberg Co., 21 Ga. App. 526 (1) ( 94 S.E. 829), and Code § 28-105, do not apply.
2. The decision of this court in 78 Ga. App. 611 (supra), is not res judicata. The only question decided by this court when this subject-matter was here before was that the judgment rendered for $386.10 could not be amended at a subsequent term of the court to set up a special lien against the property given to secure the debt. This court did not hold that the plaintiff could not pursue some other remedy consistent with the first remedy. A discharge in bankruptcy as against a debt does not discharge a lien against the property. In Berry v. Jackson, 115 Ga. 196 ( 41 S.E. 698), the Supreme Court held that in a trover action a lien was still good despite a discharge in bankruptcy. See, in this connection, Philmon v. Marshall, 116 Ga. 811 ( 43 S.E. 48); Morris Plan Bank v. Simmons, 201 Ga. 157 ( 39 S.E.2d 166). A power of sale in a mortgage is not extinguished by a general judgment. Kirkland v. Kirkland, 146 Ga. 347 ( 91 S.E. 119). This bill of sale contained a power of sale. That remedy was not extinguished by the general judgment nor the bankruptcy discharge. This court in Hughes v. Mount Vernon Bank, 4 Ga. App. 23 ( 60 S.E. 809), held that the lien of a mortgage is not waived or lost by the taking of a general judgment which contains no reference to the lien. See, in this connection, Remington on Bankruptcy, paragraphs 3443 and 3449, and the many citations thereunder to the effect that a discharge in bankruptcy of the debtor did not discharge the lien of the creditor on the property. It is, therefore, our confirmed opinion that the judgment in the trover action for the property is valid. Under the facts of this case it appears to us to be good law as well as good morals. The defendants listed the debt, but did not list the property as an asset in the bankruptcy court. They freed themselves of the debt and now seek to possess themselves of the property as well.
The court did not err in rendering the judgment for any of the reasons assigned.
Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.