Conder vs. Holleman & Ballard, and vice versa

Supreme Court of Georgia1883-11-06

71 Ga. 93

Summary · law.co

Holding. The judgment of the trial court is affirmed. A judgment creditor whose judgment predates a conditional sale is not prejudiced by the seller's failure to record the conditional sale within thirty days, and therefore cannot levy on property subject to that unrecorded conditional sale.

Conder obtained a judgment against Hudson in 1879 and sought to levy on property (a mule and wagon) in 1882. Holleman & Ballard claimed ownership, asserting they had sold the property to Hudson in January 1882 under a conditional sale agreement that reserved title to them until payment was made. Though the conditional sale was recorded in February 1882, it was not recorded within thirty days of the sale as required by statute.

The trial court ruled the property was not subject to Conder's judgment lien. On appeal, Conder argued that because the conditional sale was not recorded within thirty days, it should be treated like an unrecorded mortgage and subordinated to his earlier judgment lien. The appellate court rejected this argument, holding that registration requirements exist to notify future creditors of encumbrances. Since Conder's judgment arose before the conditional sale occurred, he had no notice interest to protect, and the failure to timely record the conditional sale did not affect his rights.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether an unrecorded conditional sale is subordinate to a prior judgment lien
Application of mortgage recording requirements to conditional sales of personal property
Whether a judgment creditor is protected by timely recording of subsequent security interests

Procedural posture

The case was tried below by a judge without a jury on an agreed statement of facts, the court ruled in favor of the claimant Holleman & Ballard, and Conder appealed by assigning error to that judgment.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Blandeord, Justice.

This case was tried below by the judge, without a jury,. on an agreed state of facts, and the property levied on found not subject. The material facts are these: Conder,. in 1879, obtained a judgment against Hudson, and had a fi.fa. issued from that judgment levied on this property,. one black mare mule and a two horse wagon, as the property of the defendant, on the 18th day of October, 1882. Holleman & Ballard claimed .the property. Their claim was based on these facts : On January 2d, 1882, they sold the property levied on to Hudson, and took his note for the purchase money, and to secure it retained, by the terms of the note, the title; .this note or contract was probated and recorded on February 28th, 1882.

The court held that, under the facts, the property levied on was not subject to the fi. fa. This judgment is excepted to, and error is assigned thereon.

It is insisted by counsel fox’ plaintiff in ex-x’or that, under the act of 1881, Code, §1955 (a), this being a conditional sale from the claimant to the defendant in execution, whereby the title to the property levied on was reserved to claimant, and inasxnuch as the same was mot x’ecorded within ihirty days, that it was subject to the Judgment lien of plaixitiff, although such judgixxent had ibeexi obtained long prior to the sale by claimant to the defendant ixx execution. Oixe provision in the statute referred •to is, “ the existing statutes and laws of this stale in relation to the registration and record of mortgages on personal ■ property shall apply to and affect all conditional sales of •persoxxal property as defined in this section.” Hence it becomes necessary that the conditioxxal sale in this case • should be recorded within thirty days, the same as the record of mortgages on personal property.

But the object of the registration of mortgages is to give notice to all persons having dealings with the mox-tgagor of the existence of the mortgage; and in this case it appears • that the dealixxgs had between the plaintiff ixx execution . and the defendant had taken place long before the sale of the property levied oxx, which was sold by the claimant to the defendant in execution, and the judgment in said case had beexx obtained long before said conditional sale. Then whether said conditional sale had been duly x-ecorded or not, it would not in any manner affect the plaintiff, whose . judgment had beexx obtained before the sale, aixd as to him it . made no difference whether the sale was recorded or not. A judgxnent creditor of a mortgagor whose judgxxxent was obtained before the making of a mortgage would not be ; affected by the record of such mortgage in any way. So this judgment creditor is in nowise affected by the non record of this conditional sale; no right has accrued to him between the making of the coxxditional sale and the record of the same; he is not hurt by its non-recox*d; and as to him, it is the same as if the sale had been duly recorded. The title to this property was in the claimant, he having re served the same until it was paid for by the defendant in execution, and he did not lose the same nor render it liable or subject to the judgment and execution of plaintiff by reason of not having his conditional sale recorded within thirty days. .The lien of this judgment never attached to the property levied on. Such being the judgment of the court below, the same is affirmed.

It is ordered that the cross-bill of exceptions filed in this case be dismissed, and that the judgment of the court below stand affirmed.

Judgment affirmed.