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Foreclosure; from Cook Superior Court-- Judge E. R. Smith. March 31, 1950.
The undisputed evidence in this case showing that the defendants in fi. fa. owed the sum of $1935.63 on a note and bill of sale to secure debt on certain personalty, the transferee for value of these instruments was entitled to claim the property to the extent of the amount due, as against the holder of notes secured by a junior bill of sale to the same property which were executed subsequently to the first instruments but prior to the assignment thereof.
The Adel Banking Company, the plaintiff in error and herein referred to as the plaintiff, filed foreclosure proceedings in the Superior Court of Cook County against James G. Devane and Jack J. Parrish, herein referred to as the defendants, attaching to their affidavit of foreclosure as exhibits bills of sale to secure debt covering certain personal property including a Model J. Quickway dragline and attachments. J. J. Parrish, the father of Jack J. Parrish, interposed a claim as to this particular piece of equipment, and upon the trial of the case the court directed a verdict in his favor, finding the property not subject to foreclosure.
The undisputed evidence is as follows: On March 26, 1947, one Frank Tharpe sold the property in question to the defendants subject to a bill of sale to secure debt on the same in favor of the Moultrie National Bank dated March 5, 1947; a part of the consideration being the payment to the bank of indebtedness on the property in the amount of $3070. On October 16, 1948, the defendants made a bill of sale to the plaintiff, Adel Banking Company, to secure an indebtedness of $2499.63, which is sought to be foreclosed here.
On December 4, 1948, the defendants informed the claimant that they owed a payment to the Moultrie National Bank the following day; that the Adel Banking Company had let them have all the money it could afford to, and it appeared they would lose the dragline. The claimant then offered to make the payments on the dragline if they would consent to let him have the title transferred to himself, to which they agreed. The claimant then made payments to the Moultrie National Bank in the amount of approximately $125 per month from December 6, 1948, through March 9, 1950, a total amount of $1935.63. On March 9 the note and bill of sale were assigned to the claimant, the latter assignment reading as follows: "For value received we hereby sell, assign and convey to June J. Parrish, his heirs and assigns, the within bill of sale, together with all the rights of the undersigned in and to said instrument, or arising thereunder. The undersigned also grants, bargains, transfers and assigns unto June J. Parrish, his heirs and assigns, the property described in said instrument, as well as the obligation secured thereby. In witness whereof we have hereunto set our hand and seal the 9th day of March, 1950, without recourse. Moultrie National Bank, by H. S. Cohen, Vice-President."
The property at all times remained in the possession of the defendants, delivery having been dispensed with by the instrument.
Following the direction of the verdict in favor of the claimant, the plaintiff filed a motion for a new trial on the general grounds which was later amended by the addition of one special ground, contending that the direction of the verdict was error as there were issues of fact to be submitted to the jury. The overruling of this motion is assigned as error.
(After stating the foregoing facts.) 1. It is conceded that the bill of sale to secure debt held by the plaintiff is a junior lien to that of the Moultrie National Bank. It is also conceded that at the time the claimant received the transfer of the note and bill of sale he made a final payment on the equipment of $105.49, that the amount of this final payment was due him in any event, and that a tender of that amount was made and refused, the claimant contending that he was due the total amount of payments made by him after his agreement with the defendants to take over the obligation and the security thereon, in the sum of $1935.63. Certainly the transfer of the bill of sale to him operated as a valid assignment which vested the title to the property in himself. See Dawson v. English, 8 Ga. App. 585 (69 S. E. 1133); Joiner v. Stallings, 127 Ga. 203 (56 S. E. 304); Blakely Artesian Ice Co. v. Clarke, 13 Ga. App. 574 (3) (79 S. E. 526). The purpose of the assignment was to give him, as a creditor, security for money paid out on the property by agreement with the defendant debtors, in which agreement they specifically accepted him as creditor in place of the Moultrie National Bank to the extent of the payments made by him on the note. These payments amounted to $1935.63 and, the defendants having failed to pay this amount on the note, they still owed it to the claimant as the owner thereof, and the note and bill of sale remained alive until payment by them of this amount unless extinguished in some other manner. It is obvious that, as between the claimant and the defendants, the former could collect this amount from them by suit, foreclosure or otherwise. Accordingly, since he has title and the right to hold the instruments until the total debt thereunder to him is satisfied, his claim is superior to the title of the plaintiff under the junior bill of sale. There is no contention here that the bill of sale was not properly recorded, or that the plaintiff did not have knowledge of it at the time of making its loan. See Code, 67-1305, 29-401. Neither is it contended that the transaction, although between near relatives, was in any way fraudulent. See Nolley v. Elliott, 50 Ga. App. 382 (4, 6) (178 S. E. 309). The claimant was therefore entitled to the entire amount owing to him under his lien, which was superior to that of the plaintiff in fl. fa.
The plaintiff in error relies upon Erwin v. Brooke, 159 Ga. 683 (126 S. E. 777) and Federal Lank Bank of Columbia v. Barrow, 173 Ga. 242 (160 S. E. 228), both dealing with subrogation, in his argument that the claimant in this case did not pay the debt of claimants under such circumstances as would entitle him to be subrogated to their rights. Subrogation is, of course, the substitution of one person for another by reason of payment by that person of a claim owing by the original debtor. Had there been no written assignment and transfer of the note and bill of sale to the claimant here, we would be squarely faced by this proposition, but in view of this assignment, which transferred legal title to the claimant without regard to any other right he may have had, this question is not before the court. The general grounds are therefore without merit.
Where the evidence as a whole, with all reasonable deductions and inferences therefrom, demands a verdict finding the property not subject to the fi. fa., it is not error for the court to direct a verdict in favor of the claimant. Southern Oldsmobile Co. v. Baker, 25 Ga. App. 580 (6) (103 S. E. 826). The trial court did not err in overruling the motion for a new trial as amended.
Judgment affirmed. MacIntyre, P. J., and Gardner, J., concur.
Franklin, Eberhardt & Barham, for defendants.
Edward Parrish, for plaintiff.
DECIDED JULY 16, 1951.
Saturday May 23 05:11 EDT

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