Household Finance Corporation v. Ensley , 127 Ga. App. 876 ( 1973 )

127 Ga. App. 876 (1973) 195 S.E.2d 236

HOUSEHOLD FINANCE CORPORATION
v.
ENSLEY.

47632.

Court of Appeals of Georgia.

Argued November 6, 1972. Decided January 24, 1973.

Harris Bullock, for appellant.

Virgil C. Spence, for appellee.

BELL, Chief Judge.

This is a trover suit to recover a motorcycle in which the plaintiff elected to take a money verdict for the value. The jury returned a verdict for defendant. Held:

1. The evidence does not authorize a verdict for the defendant-appellee. It shows that plaintiff-appellant had legal title to the motorcycle under the terms of a conditional sale title retention contract which had been assigned to it. The plaintiff's security interest was recorded on the Georgia Certificate of Title. The original purchaser had not satisfied the sale contract by payment at the time the property was seized from him under a distress warrant for nonpayment of rent. The property was sold at a judicial sale to defendant for $250 who in turn sold it for $500. Plaintiff was not a party to the distress warrant proceedings and there is no evidence that it had any other notice of the levy and sale. A purchaser of property at a judicial sale acquires no title whatsoever to the property as against the true owner who was not a party to the proceedings, where the defendant in execution had no right, title, or interest in the property but had only the mere right to possession and use of the property. Commercial Credit Co. v. Britt, 53 Ga. App. 430 (1) (186 S.E. 449). The only evidence of value was the purchase price at a judicial sale and the price paid defendant when he sold it, $250 and $500, respectively. This evidence was contained in defendant's sworn answers to plaintiff's interrogatories. The answers were admissible in evidence, for CPA §§ 33 and 26 (d) (2) (Code Ann. §§ 81A-133 and 81A-126 (d) (2)) then in effect at the time of trial in June 1972, permitted their use by an adverse party for any purpose. This evidence was competent to show that the property was at least of some value. Defendant offered no evidence. Thus plaintiff established its case and in the absence of anything that could be a defense, the evidence demanded a verdict for plaintiff. The trial court erred in entering a judgment for defendant on the verdict. Horne-Wilson, Inc. v. Smith, 109 Ga. App. 676 (137 SE2d 356).

2. The other enumerations going to the charge and failures to charge are all without merit.

Judgment reversed. Evans and Stolz, JJ., concur.