Glisson v. Heggie Bros.

Lewis, J.

The contract entered into between the plaintiffs and defendant is rather a novel one in its nature. It reserves in the vendors title to the property sold, and in another clause of the instrument creates a lien upon that property, and certain lands of the vendee. We are inclined to think that under the instrument the vendors, at their election, could have treated it as an absolute sale, and have proceeded to foreclose their mortgage upon the property sold, as well as the land; or they could have relied upon their right of title to the mules, and have brought trover therefor. This is, however, a question not made by the record. The vendors elected to bring trover for the remaining mule, and of course would be estopped from denying their right to do so. It is a well-settled rule of law that where property is sold with the condition that the title is to remain in the vendor until the purchase-price is paid, unless otherwise stipulated, the risk is on the seller, and in case of loss of the property without fault of the buyer, no action can be maintained for the purchase-price. Randle v. Stone, 77 Ga. 501 . See opinion of Chief Justice Jackson, and authorities therein cited. It does not appear definitely from this record whether the credit on the note made at its maturity was allowed on ac *33 count of the death of the mule, or was actually paid in cash by the vendee. We think a fair inference from the record, however, is that the payment wras made by the purchaser. If this be true, then that credit should have been applied to the purchase-price of the remaining mule, and if it amounted to its value according to the contract price, it was really a cancela-tion of the debt. This would have constituted a defense to the bail-trover proceeding. But it seems no defense was filed, to that action, and the plaintiff recovered the proceeds of the sale •of the mule. However this may be, we think the trover proceedings and their result amounted to a rescission-of the whole contract so far as the purchase-price for the property was concerned. When the vendor of personal property reserves title in himself until the purchase-money is paid, his sale is only a conditional one, and when he elects to take the property, either by •taking possession of it under his contract, or by claiming it in .an action of trover, the measure of his recovery is the property itself, and its value for hire, if any is claimed. In the case of Tidwell v. Burkett, 81 Ga. 84 , it_was decided, where a note for ■the purchase-money of a mule, reserving title in the seller, had "been transferred by him to third parties, and was in their Rands when action of trover for the mule was brought and at the time a verdict was obtained for the same, that the verdict was unwarranted by the facts; that the bringing of the action was equivalent to a rescission of the whole contract; and that there was no right to recover the value of the property from the vendee before the note had been delivered up to him. The case of Hays v. Jordan, 85 Ga. 741 -2, was where there, was a con-, tract for the conditional sale of a piano, title to which was reserved in the seller until the purchase-price was paid. Certain ■payments were made by the purchaser, and having defaulted, the •seller brought an action of bail-trover for the piano, and elected to take it. It wras held by this- court that, .before it could be re•covered, the seller should return the amount paid him. We do not mean to say that on the trial of such an action of trover, •when the plaintiff elects to take 'damages in lieu of the property, •or when the defendant sets up an equitable defense asking that £i recovery be had only for the balance of the purchase-money *34 due, the court should not instruct the jury to- so mold their verdict as to protect the substantial equities and rights of the parties. What we do rule is, that when an election is made to take the • property itself, and it has been recovered by the plaintiff, this is a rescission of the contract of purchase, and no subsequent action can be had for any further recovery. In the present case it' is • true the property itself was not awarded to the plaintiffs, but the action had was equivalent to the same thing. There was a failure to replevy the property seized under bail-process, and’ upon application of the plaintiffs it was sold in accordance with the provisions of §4607 of the Civil Code. It is provided in that section, “that in case the property is sold, the plaintiff, in-case of recovery, shall only be entitled to a money verdict for the amount of the proceeds of such sale, together with hire or interest from the date of conversion to the date of seizure, if' the jury shall so find.” Manifestly then the proceeds of the ■ sale, in contemplation of law, stand in lieu of the property itself, and the recovery of such proceeds has the same legal effect ■ on the rights and liabilities of the parties as if the property had>. been replevied, and- then, upon the trial of the trover proceedings, had been recovered by the plaintiffs.

Judgment reversed.

All the Justices concurring.