Opinion
43139.
ARGUED OCTOBER 5, 1967.
DECIDED NOVEMBER 6, 1967.
Money rule. Fulton Civil Court. Before Judge Langford.
Jones Read, Chas. D. Read, Jr., William A. Edwards, Jr., for appellant.
Preston Holland, Frank E. Coggin, Harold Sheats, Paul H. Anderson, for appellees.
Where the plaintiff fails to prove his case as laid, a nonsuit is proper.
ARGUED OCTOBER 5, 1967 — DECIDED NOVEMBER 6, 1967.
The appellant purchased a mobile home trailer at a marshal's sale had in the course of foreclosure proceedings. Thereafter, he instituted an action in the nature of a money rule seeking to recover the purchase money paid the marshal for the trailer. The petition alleged as the sole basis of the action that at the time of the sale title was not in the defendants in the foreclosure proceeding because there was a superior encumbrance on the trailer, "to wit: a retention of title contract," held by a third party.
Upon the trial of the case the plaintiff's evidence disclosed: that the defendant in foreclosure executed a retention of title contract in favor of the original seller; that subsequently the contract was transferred to a banking corporation; that the bank, while the legal holder of the contract and before the trailer was sold under the foreclosure proceedings, marked the instrument together with the note it secured "paid" and on the same day entered upon the original certificate of title to the trailer a cancellation reading: "The undersigned holder of the lien or security interest in the vehicle described on the reverse side of this certificate does hereby state that the lien or security interest, described in said certificate of title is released and discharged." At the conclusion of the evidence the trial judge granted a motion for a nonsuit. The plaintiff appealed and the case is here for review.
The only question raised by the enumeration of errors was whether the grant of the nonsuit was error. The plaintiff's evidence affirmatively showed that the retention of title contract was marked "paid" and the lien released by the bank prior to the marshal's sale. Therefore, the plaintiff failed to produce prima facie evidence to support the material averment essential to his recovery that there was a superior encumbrance outstanding at the time of the marshal's sale. Hence, the plaintiff did not prove the case as laid and the trial judge did not err in sustaining the motion for a nonsuit. Conner v. Bowdoin, 85 Ga. App. 231 ( 68 S.E.2d 619); Whitley v. Coleman, 207 Ga. 685 (4) ( 64 S.E.2d 67).
Judgment affirmed. Jordan, P. J., and Deen, J., concur.