Opinion
34946.
DECIDED APRIL 12, 1954.
Conditional-sale contract. Before Judge Philips. Decatur City Court. September 24, 1953.
W. S. Northcutt, R. J. Edwards, for plaintiff in error.
J. Robin Harris, Wm. B. Jones, contra.
1. The evidence was sufficient to present an issue for the jury as to whether the defendant was a resident of Fulton or of DeKalb County.
2. A conditional-sale contract, in order to have priority over a junior judgment, must be filed for record in the office of the clerk of the superior court of the county of the vendee's residence within 30 days of the date of its execution, and if filed after 30 days from date of execution, but before the execution upon the junior judgment is issued, it has priority over such judgment.
DECIDED APRIL 12, 1954.
This is a claim case arising in a contest for priority between a conditional-sale contract and a junior judgment. The evidence shows that the vendor of certain personal property placed it in the possession of the vendee, and took from the vendee a conditional-sale contract. The contract was recorded in the clerk's office in Fulton County. The vendee, being in default in his payments, finally abandoned the property and left it in the vendor's possession. The vendor, according to his own testimony did not accept the rescission of the sale, but swore on the trial of the case that the property belonged to the vendee, except that the vendee owed him for its purchase price. While the property was in the possession of the vendor after having been abandoned by the vendee, a creditor of the vendee obtained a judgment against him, and had an execution issued thereon and placed on the general execution docket. Thereafter a levy was made on this execution and a claim to the property was filed by the vendor. The vendor testified in part, as follows: "I still want him to have it if he'll pay for it. It is his except what he owes me for it." The evidence further disclosed that the vendee, three years prior to the execution of the conditional bill of sale, had lived at a named street address in DeKalb County; that the conditional-sale contract described him as a resident of Fulton County; and that, several months after the execution of the conditional-sale contract, he was served with a suit, in which the judgment was obtained at the same address in DeKalb County where he had resided three years before the execution of the contract. The trial court withdrew the case from the jury and dismissed the levy.
1. Evidence that a person resided at a certain street address in a named county one year after and three years before the date of a conditional-sale contract, though circumstantial in its nature, is sufficient to present an issue of fact for determination by a jury, notwithstanding the conditional-sale contract contains a reference to such person as "of" another and different county. A statement contained in a duly authorized officer's entry of service that a person is served with process at his most notorious place of abode, and designating such person's most notorious place of abode as a certain address in a named county, is evidence of the fact that such person resides at that address. Greer v. Fergerson, 104 Ga. 552 ( 30 S.E. 943); Stegall v. Southwest Georgia Regional Housing Authority, 197 Ga. 571 ( 30 S.E.2d 196).
2. When the vendor of personal property delivers it into the possession of his vendee and takes a conditional-sale contract from the vendee, if such instrument is filed in the clerk's office of the superior court in the county of the residence of the vendee within 30 days of the date of its execution, it has priority over a junior judgment rendered against the vendee during that time. If the conditional-sale contract be filed for record more than 30 days after date of its execution, in the clerk's office of the superior court of the county of such residence and before a junior judgment is rendered against the vendee and the execution issued thereon is recorded, it still has priority over such junior judgment. If the conditional-sale contract is not filed for record in the office of the clerk of the superior court in the county of the vendee's residence within 30 days of the date of its execution, or before a junior judgment against the vendee is obtained and execution issued upon the same is recorded on the general execution docket of such county, the contract loses its priority over the junior judgment. Code § 67-1403.
As against a junior judgment, the actual knowledge of the rights of a holder of a conditional-sale contract does not dispense with the necessity of filing the conditional-sale contract for record as required by the statute. This is true because the priority of a conditional-sale contract and junior judgment is not dependent upon whether the junior-judgment creditor has notice or knowledge of the rights of the holder of the conditional-sale contract, but is dependent simply upon whether the conditional-sale contract is filed for record within 30 days of the date of its execution, or thereafter recorded in the clerk's office of the vendee's residence before a junior judgment is obtained against the vendee, and the execution thereon is recorded on the general execution docket of such county. In short, after the thirty-day period has elapsed from the date of the conditional-sale contract, the question of which of the instruments — a sales contract or a junior judgment — has priority over the other is simply a matter of which of them reaches the goal of recordation first. Rhode Island Locomotive Works v. Empire Lumber Co., 91 Ga. 639 ( 17 S.E. 1012). The rule is different in reference to bills of sale to secure a debt. Hill v. Ludden Bates Southern Music House, 113 Ga. 320 ( 38 S.E. 752).
What has been said above is not consistent with intimations to the contrary contained in Columbus Heating c. Co. v. Burt, 39 Ga. App. 384, 386 ( 146 S.E. 918); and Bank of Ringgold v. West Publishing Co., 61 Ga. App. 426, 429 ( 6 S.E.2d 598). However, the intimations in each of the cases mentioned have been obiter dicta and not necessary to the decision in those cases.
It is obvious in this case that, if the vendor in the conditional bill of sale had desired to do so, he could have declared the contract of sale between him and the vendee rescinded and could have retained the property involved as his own and free of all liens against the vendee. Jones v. Williams, 40 Ga. App. 819 ( 151 S.E. 695); Motor Contract Co. v. Johnson, 61 Ga. App. 735 (2) ( 7 S.E.2d 320). But that was a matter of election for the vendor in this case, and he did not elect to declare the contract rescinded, but by his own testimony, that "I still want him to have it if he'll pay for it. It is his except what he owes me for it," undisputed and unexplained, established that the contract was not rescinded. The mere holding of property abandoned by the vendee in possession of the vendor does not of itself rescind a conditional-sale contract. Redman v. Woods, 42 Ga. App. 713, 717 ( 157 S.E. 252); Reynolds v. Wilson, 64 Ga. App. 723 ( 13 S.E.2d 853).
There is nothing in the act of 1931 (Ga. L. 1931, p. 153), or in the act of 1952 (Ga. L. 1952, p. 88), that in any way changes the rules governing the priority of conditional-sales contracts and junior judgments. The first of those acts applies only to bills of sale to secure debt and to security deeds. The latter act simply changes the rule that a conditional-sale contract must be recorded within 30 days in order to have priority over junior liens and purchasers without notice from the vendee, to require simply that the conditional bill of sale be filed for record within that time. Evans Motors of Georgia v. Hearn, 53 Ga. App. 703 ( 186 S.E. 751); Cairo Banking Co. v. Citizens Bank, 63 Ga. App. 690 ( 11 S.E.2d 806); Mackler v. Lahman, 196 Ga. 535, 537 ( 27 S.E.2d 35).
From what has been said above, the court erred in withdrawing the case from the jury and in dismissing the levy, and for this reason the judgment of the trial court must be
Reversed. Felton, C. J., and Nichols, J., concur.