Goodwin v. May , 23 Ga. 205 ( 1857 )

By the Court. —

Lumpkin, J.

delivering the opinion.

The question in this case is this : A. sells personal property to B., and delivers it with the express understanding and agreement that if the same be not paid for at the time stipulated, A. is to repossess himself of the property, and that he is to retain the title until the money is paid. B. removes to another county, and mortgages the property to a creditor, who has no notice of the conditional sale. Who has the better right ?

There is but one ground upon which the lien of the mortgagee can be maintained, as against the legal title; and that is, constructive fraud or gross negligence; which, in effect, implies fraud. Indeed, the rule is, that there must be positive fraud or concealment, or negligence so gross as to amount to constructive fraud. And it is not every degree of negligence which will amount to a constructive fraud. It must be gross.

Here it is not pretended that there was either actual fraud or concealment as to the title of this property. What negligence was there? There is nothing in the fact that the contract was not reduced to writing and recorded. Neither of these things were necessary and the doing of both would not have altered the law of the case one whit. To hold therefore, that the vendor should lose his property, under the facts of this case, would put an end to all loans, most bailments, and break up altogether the transfer and removal of personal property from one place to another, unless accompanied by the actual owner.

It is true that possession is prima facie evidence of title to personal property. Judge Blackstone says it is of real. Still, if A. hire or borrow a horse to ride or drive to a neighboring village, and B. buy him, he cannot expect to hold the horse against my title. How can Mr. May any more expect to assert his mortgage lien on this furniture, as against Goodwin, the true owner? Shall it be said that Cain acquired credit on account of his possession of this furniture, anddhai Goodwin enabled him to obtain this credit, and that of two innocent persons, he that puts it in the power of another to commit the wrong, must be the sufferer ? Did not A., in the case supposed, procure credit upon the possession of my horse, and did not I enable him to do so ? Why, then, upon this course of reasoning, should not B., who has paid the full value for the horse, hold him ?

This doctrine is unsustained and unsustainable. Possession may be prima,facie proof of title, still, in law, it is no more than that. And whether it be land, or negroes, or horses, or household furniture, caveat emptor is the doctrine as to the true owner; and we must examine into titles before we purchase property or give credit, or take the conseqences.

Judgment reversed.