Morrow v. Young , 24 Ga. App. 642 ( 1920 )

Luke, J.

Under the facts of the ease as disclosed by the pleadings, the court did not err in dismissing the amended' petition, on general demurrer.

Judgment affirmed.

Broyles, G. J., and Bloodworth, J., eoneur.

The petition further alleges: “After the said Woods was adjudicated a bankrupt, in October, 1917, Guy 0. Buckner, as trustee for said bankrupt, advertised all of said property for sale, and refused to recognize petitioner’s right, title, or claim to an interest in the same. Petitioner was present at said sale, which occurred on the 8th day of November, 1917, and announced at said sale that he had a retention of title to a half interest in said property as security for the balance of the purchase-money due him for his interest, and that any one purchasing said property would do so subject to petitioner’s interest. Despite this, said trustee announced that he was selling the entire interest in said Albany Ice Cream Company, free of petitioner’s rights; which petitioner then and there denied and still denies.” “The said E. B. Young, the defendant in this case, bid in said property at said sale and took exclusive possession and control of the same, and denied that . . petitioner had any right or interest in the same, and refused to deliver to . . petitioner any interest in said property, or to recognize petitioner’s rights to the same, though demand was made on him so to do prior to the institution of this suit.” The first two of said retention-of-title notes were paid by said Wood and delivered to him, and the last two of said notes, amounting to $2,420, with interest thereon, less certain credits shown on the notes, represent the amount of petitioner’s claim, for which he holds said retention of title as an assurance of payment. “Petitioner claims title to a one-half undivided interest in all of said property described above, and alleges that his said interest in the same is of the value of $2,875.” Defendant refuses to deliver to petitioner a one-half undivided interest in said property, or recognize the validity of petitioner’s claim for the same, or pay him the profits thereof, though demand has been made on him so to do. The yearly value or hire of said property is $230. Wherefore petitioner prays process, etc.

The defendant demurred to the petition generally, and demurred specially to the description of .the property as being too indefinite and uncertain. The court sustained the general demurrer and dismissed the petition, and the plaintiff excepted.

In the brief of counsel for the defendant it was contended: (1) that trover would not lie to recover an undivided interest in specific property incapable of division in kind, where a court of bankruptcy had custody of the res and jurisdiction to administer on it; (2) that in the retention-of-title paper the plaintiff did not retain title to any specific property, and therefore could not maintain trover for specific property; and (3) that the description in the retention-of-title paper is too indefinite, and is void because of uncertainty; and the plaintiff can not maintain trover based on such an uncertain description as against the purchaser from a trustee in bankruptcy having the rights of a judgment creditor.

B. J. Bacon, W. G. Martin, B. II. Bedfearn, for plaintiff,

cited: 137 Ga. 154; 141 Ga. 313; 147 Ga. 27; 24 Ga. App. 474; 120 Ga. 880; 132 Ga. 516; 137 Ga. 324; 94 Ga. 27.

Pottle & Hof mayor, for defendant,

cited: 222 U. S. 300; 211 U. S. 562; 42 Am. Bkr. R. 232; 20 Am. Bkr. R. 573; 8 Ga. App. 262 (1); 7 Ga. 530; Collier, Bkr. (11th ed.) 716; 30 Cyc. 458, 605; 51 Ga. 372 (1); 138 Ga. 568-9; 101 Ga. 136; 43 Ga. 325; 40 Ga. 328; 77 Ga. 536; 84 Ga. 294; 124 Ga. 669; 144 Ga. 375; 19 Ga. App. 69 (2), and cit.; 20 Ga. App. 49, 52.