D. A. Schulte Inc. v. Varron , 52 Ga. App. 683 ( 1936 )

Stephens, J.

1 “When the seller of personalty has a leviable interest in the property, notwithstanding it may be in the possession of the purchaser, and the creditor’s right is subject to the purchaser’s equity in the contract, where the property has been levied on under an execution against the seller, and the purchaser files a claim thereto, the levy can not proceed and the property be subjected to a sale thereunder when the amount due by the purchaser on the purchase-money and the respective interests of the seller and the purchaser in the property do not appear.” Schulte Inc. v. Varron, 181 Ga. 542 (182 S. E. 912).

2. The evidence authorized the inference that the personal property levied on under the distress warrant was found in the possession of the claimant, that the interest of the defendant in fi. fa. was that of a seller of the property to the claimant as a purchaser, under a contract by which the title to the property levied on, and other property sold by the defendant in fi. fa. to the claimant, was reserved .to the seller as security for the purchase-money; and it not appearing what portion of the debt, if any, had been paid, or what portion of the debt had reference to the property levied on, and it therefore not appearing what the respective interests of the seller and the purchaser were in the property levied on, the evidence authorized the verdict and judgment for the claimant.

Decided February 25, 1936. Jones, Fuller, Russell & Clapp, J. D. McLamb, for plaintiff. J. Lon Duckworth, McElreath & Scott, for defendant.

Judgment affirmed.

Jenkins, P. J., and Sutton, J., concur.