Citizens Bank v. Mullis , 161 Ga. 371 ( 1925 )

Gilbert, J.

1. “In an action of trover tlie issue is one of title, and not of debt. . . The sole issue in tlie trial of an action of trover is that of title to tlie property in dispute; and the fact that the plaintiff may elect to take a money verdict in lieu of the specific personalty claimed can in no event alter that issue.” Berry v. Jackson, 115 Ga. 196, 197 (41 S. E. 698, 90 Am. St. R. 102). “That money verdict is damages in lieu of property, but the title to the property is the issue, and the measure of the damages is its value.” Campbell v. Trunnell, 67 Ga. 518, 520; Harden v. Lang, 110 Ga. 392, 396 (36 S. E. 100).

2. The vendor in a conditional sale evidenced by writing is not a mere lienor. He stands in the position of an absolute owner of the property, and when such property is delivered to a trustee in bankruptcy, the latter possesses no greater interest, nor has any better title thereto, than the bankrupt had, and the rule of caveat emptor obtains in this case as in other judicial sales. Myrick v. Liquid Carbonic Co., 137 Ga. 154, 156 (73 S. E. 7, 38 L. R. A. (N. S.) 554).

3. Assuming that the trover suit in this case was based upon facts which would authorize the recovery thereunder of the property, we answer that the plaintiff in such a suit can obtain a money judgment as against the vendor for the value of the property, against a plea of discharge in bankruptcy.

4. Where one executes a bill of sale of personal property to another, and thereafter, while title remains in the latter, delivers such property to a trustee in bankruptcy, under the facts set forth in the question following', the debtor can not avail himself of a discharge in bankruptcy as a defense to a suit in trover. Covington v. Rosenbusch, 148 Ga. 459 (97 S. E. 78); McIntyre v. Kavanaugh, 242 U. S. 138 (37 Sup. Ct. 38, 61 L. ed. 205).

No. 4847. December 15, 1925. Lawson & Ware, for plaintiff. O. A. Weddington, for defendant. Atkinson, J., dissents. The other Justices concur.