Opinion
32871.
DECIDED FEBRUARY 9, 1950.
Trover; from Bibb Superior Court — Judge Mallory C. Atkinson. November 8, 1949.
Roy B. Rhodenhiser Jr., for plaintiff in error.
Benning M. Grice, Wilmer D. Lanier, contra.
1. ( a) Under Code § 67-1403, when conditional bills of sale have been recorded in the county of the residence of the conditional vendee within 30 days from the date of their execution, such registration serves as constructive notice to the world of the existence of such instruments from the date of their execution.
( b) Under Code §§ 67-1305 and 29-401, when bills of sale to secure debt have been recorded in the county of residence of the maker thereof, such registration serves as constructive notice from the date the same are filed for record.
( c) Where, as here, there is a conflict between a conditional bill of sale properly recorded within 30 days from its execution and a bill of sale to secure debt executed subsequently to the date of the conditional bill of sale but recorded first, the conditional bill of sale must prevail, since its registration relates back to the date of its execution and constitutes constructive notice to the world of its existence from that date.
2. Since the claim of the conditional vendor is superior to that of the payee of the bill of sale to secure debt, tender of the sum which the conditional vendee owes the payee or his assignee is not a condition precedent to the maintenance of an action of trover for the property.
3. Where the requirements of law are otherwise met a trover action will lie, although the property has been disposed of by the defendant prior to the date of demand and the filing of the suit.
4. The direction of a verdict on the issue of title was demanded by the evidence, and, there being evidence in the record sufficient to substantiate the verdict of the jury as to the value of the property, the trial court did not err in overruling the motion for a new trial as amended.
DECIDED FEBRUARY 9, 1950.
The defendant in error, General Finance and Thrift Corporation, herein referred to as the plaintiff, brought a trover action against James Scoggins in the Superior Court of Bibb County, alleging that it claimed title to a certain described Chevrolet automobile; that on October 14, 1948, the defendant was in possession of the automobile and had since disposed of it to parties unknown; that the value thereof was $1971.54, and that demand had been made. The undisputed evidence established that on August 26, 1948, Dillon Motor Company sold the car to one Brooks for $2203.20 under a conditional-sales contract, which contract was assigned to the plaintiff, holder of the buyer's promissory notes. The conditional-sales contract was recorded in the office of the Clerk of the Superior Court of Warren County, the county of the buyer's residence, on September 8, 1948, within the 30-day period allowed by statute, but subsequent to a transaction of August 31 in which Brooks executed a promissory note for $515 accompanied by a bill of sale to the property to the Citizens Bank of Warrenton. The bank had no notice at that time of the existence of the conditional-sales contract. It recorded its bill of sale to secure debt on September 1, in Warren County. On October 20 the defendant purchased the automobile, paid the debt of $515 due the Citizens Bank of Warrenton, the only outstanding claim of which he had actual knowledge, and the bank delivered up the bill of sale to him. He later sold the car and did not have it in his possession at the time the demand on him was made, which was February 17, 1949. This action was brought on April 4, 1949. At the conclusion of the evidence the trial court directed a verdict in favor of the plaintiff on his claim in trover and left for the determination of the jury the value of the property, a money verdict having been elected. The jury returned a verdict in favor of the plaintiff for $1512.90, and judgment was written up accordingly. The defendant filed his motion for a new trial on the general grounds, adding five special grounds. The overruling of this motion is assigned as error.
1. Special grounds 1, 2, and 3, which complain of the court's action in directing the verdict, are considered together. The defendant contends that at the time the Citizens Bank of Warrenton accepted the bill of sale to the automobile from Brooks, the original buyer, and recorded the same, it had no notice of the conditional bill of sale of the plaintiff since the latter instrument was not filed for record at that time; that its recorded instrument is therefore entitled to priority, and that the defendant, as transferee thereof, is entitled to like priority. This contention is unsound in the first instance on the authority of our Code § 67-1403 which provides as follows: "The registration and record of conditional bills of sale shall be governed in all respects by the laws relating to the registration of mortgages on personal property, except that they must be recorded within 30 days from their date." (Italics ours.) In this they differ from mortgages, deeds and bills of sale to secure debt since these latter instruments date only from the time they are filed for record as to innocent purchasers without notice thereof. See Code §§ 67-109, 67-1305, and 29-401. This has been true, as to mortgages, deeds, and bills of sale to secure debt, since the adoption of the Code of 1895. See Saunders v. Citizens First National Bank, 165 Ga. 558 ( 142 S.E. 127). Previous to that time our law provided a 30-day period for recording as to them also. The general rule is that where a specified period of time is allowed by statute for the recording of an instrument, and it is properly recorded within that time, the claim or lien arising thereunder dates back to the execution of the instrument. A mortgage recorded within the 30-day period allowed prior to the adoption of the Code of 1895 related back to the time of its signing. Jones v. Howard, 99 Ga. 451 (1) ( 27 S.E. 765). Further, in Huey v. LaGrange Motors Inc., 78 Ga. App. 624 ( 52 S.E.2d 45), a case involving a like issue as to the relative rights of the holder of a retention-of-title contract and a purchaser for value without notice previous to the recording thereof, both sales occurring within the 30-day period, it was held that the conditional vendor had complied with the terms of the statute and was entitled to priority.
Since the plaintiff's conditional-sales contract was recorded in the county of the buyer's residence within 30 days of the date of its execution, and since the effect of this registration is to give notice to the world from the date of its execution, the court did not err in directing a verdict for any reason stated in the first three grounds of the motion for a new trial.
2. Special ground 4 complains that the court erred in directing a verdict for the reason that the plaintiff did not tender to the defendant the sum of $515 paid by him to the Citizens Bank of Warrenton in satisfaction of the bill of sale to secure debt. The plaintiff had no part in the transaction between the defendant and the bank. Had the note for $515 due the latter not been paid, the bank would have had no recourse against the plaintiff because of the mere fact that it lent its money upon a worthless security, and certainly its transferee, the defendant Scoggins, is in no better position. Ground 4 is therefore not meritorious.
3. Ground 5 complains of the direction of a verdict, on the ground that the defendant had parted with possession of the automobile before this action was brought. A trover action will lie, upon proof of conversion by the defendant, even though the property has been destroyed before the commencement of the action. See Tharp v. Anderson, 31 Ga. 293. It follows that such action must also lie although the property has been disposed of by sale prior to demand and suit. See Whelchel v. Roark, 31 Ga. App. 75 ( 119 S.E. 451); Chambless v. Livingston, 123 Ga. 257 ( 51 S.E. 314). This ground of the amended motion is without merit.
4. The direction of a verdict on the issue of title was demanded by the evidence, and, there being evidence in the record sufficient to support the verdict of the jury as to the value of the property, the trial court did not err in overruling the motion for a new trial as amended.
Judgment affirmed. MacIntyre, P. J., and Gardner, J., concur.