Bishop v. R. S. Evans East Point Inc. , 80 Ga. App. 324 ( 1949 )

The court did not err in sustaining the demurrers to the defendants' affidavit of illegality to the foreclosure of a conditional-sale contract for the sale of an airplane and in dismissing it.

DECIDED NOVEMBER 1, 1949. R. S. Evans, East Point Inc. foreclosed a retention-of-title contract for the sale of an airplane against Albert J. Bishop and H. W. Clay. The defendants filed an affidavit of illegality in which they alleged: "1. That the consideration in the bill of sale attached to said foreclosure as a basis for said proceeding, failed in the following manner. 2. Defendants show that the Federal law and the rules and regulations of the Civil Aeronautics Administration, said administration acting by authority of and under the Federal law regulating the buying and selling of airplanes and their operation, require that a plane be registered in the name of its owner, and that when said plane was sold by plaintiff to defendants that it was not registered in the name of said plaintiff, nor has it been since said time. 3. It is further shown that at the time of said sale that said Cessna airplane, serial 5981, registration No. 55250, the plane in question, was then and now is registered in the name of J. E. Jacks, 1622 N.E. Second Avenue, Miami, Florida. . . 6. Defendants further show that under the Federal law applicable thereto and under the rules and regulations of the Civil Aeronautics Administration made under the provisions of said law, defendants were prohibited from using said plane because of its not being registered in plaintiff's name, as provided by law, so that defendants could have it registered in their names and their chain of title perfected as required by law, and said failure constituted a total failure of consideration for the purchase-price thereof. 7. Defendants show that they paid $477.04 on the purchase-price of said plane, being the repair bill then due on said plane, and that they should have and recover of said plaintiff said sum because of the facts herein set out." The plaintiff filed the following demurrers (omitting those as to which assignments of error are abandoned): "1. Plaintiff demurs to and moves to strike said affidavit in its entirety in that same fails to set forth any defense to plaintiff's foreclosure. 2. Plaintiff demurs to and moves to strike paragraph 1 of said affidavit on the ground that said paragraph is a conclusion of the pleader without sufficient facts plead therein or elsewhere in said affidavit to support same. 3. Plaintiff demurs to and moves to strike paragraph 2 of said affidavit on the ground that the allegations of said paragraph are irrelevant and immaterial to plaintiff's right to foreclose its conditional-sales contract against property therein described for the balance due and unpaid as alleged. Plaintiff further demurs to and moves to strike said paragraph on the ground that the rules and regulations of the Civil Aeronautics Administration therein referred to are not set forth therein and that said rules and regulations do not have the force and effect of statute law, and therefore said rules and regulations or the pertinent parts thereof are not properly plead. 4. Plaintiff demurs to and moves to strike paragraph 3 of said affidavit on the ground that said affidavit fails to state where said airplane is registered as alleged or wherein any such registration affects defendant's liability to plaintiff for the purchase-price of the airplane or plaintiff's right to maintain this action for foreclosure against the property therein described. 8. Plaintiff demurs to and moves to strike paragraph 6 of said affidavit on the ground that said paragraph is a conclusion of the pleader based on no properly plead facts therein or elsewhere in said affidavit in that no pertinent parts of the rules and regulations of the Civil Aeronautics Administration are set forth in said paragraph or elsewhere in said affidavit. 9. Plaintiff demurs to and moves to strike paragraph 7 of said affidavit on the ground that said paragraph shows no right on the part of the defendants to recover the sum therein set forth or any part of the purchase-price of said airplane and constitutes no defense to defendant against plaintiff's right to foreclosure." All grounds of the demurrer were sustained and the affidavit of illegality was stricken and the defendants excepted. 1. The defendants below contend that under USCA Title 49, § 523 (c), the plaintiff was required to register its title. This section provides: "No conveyance the recording of which is provided for by subsection (a) (1) of this section made on or after August 22, 1938, and no instrument the recording of which is provided for by subsection (a) (2) of this section or subsection (a) (3) of this section made on or after June 19, 1948, shall be valid in respect of such aircraft, aircraft engine or engines, propellers, appliances, or spare parts against any person other than the person by whom the conveyance or other instrument is made or given, his heir or devisee, or any person having actual notice thereof, until such conveyance or other instrument is filed for recordation in the office of the Administrator. For the purposes of this subsection, such conveyance or other instrument shall take effect from the time and date of its filing for recordation, and not from the time and date of its execution." That is true if the plaintiff intended to operate the airplane but it does not mean that the conditional-sale agreement is void as between the parties because the above provisions of law specifically state that the conveyance is not void as between the parties thereto or as to one having actual notice thereof.

2. We have not been cited authority which holds that the defendants could not register their title because their predecessor in title had not registered its title. We see no reason why the defendants could not have registered their title even if the plaintiff did not register its title. In order to do so, the defendants would probably have to have a bill of sale from the plaintiff's predecessor in title or from the plaintiff's predecessor in title conveying the property to the plaintiff, but the affidavit of illegality is not based on the theory that the plaintiff refused to furnish the defendants with a bill of sale showing a transfer of title to the property from the plaintiff's predecessor in title to the plaintiff or the defendants. The only conclusion to be arrived at under the pleadings is that the affidavit of illegality does not allege any fact or facts tending to show a partial or total failure of consideration; specifically, it alleges nothing showing that the plaintiff did or omitted to do anything which prevented the defendants from registering the airplane in their own names and using it for whatever legal and authorized purpose they desired. Section 523 (h) of Title 49, provides: "The person applying for the issuance or renewal of an airworthiness certificate for an aircraft with respect to which there has been no recordation of ownership as provided in this section shall present with his application such information with respect to the ownership of the aircraft as the Administrator shall deem necessary to show the persons who are holders of property interests in such aircraft and the nature and extent of such interests." A pertinent regulation of the Civil Aeronautics Administration ministration also supports the foregoing conclusion. The regulation is as follows: "If the seller is not shown on the records of the Civil Aeronautics Administration as being the owner of the aircraft, the bill of sale must be accompanied by a bill or bills of sale or similar instruments establishing the fact that the seller is the owner." 12 Fed. Reg. 2802-4, CCH Aviation Law Reporter, Vol. 1, p. 5433-5. The contents of the Federal Register must be judicially notice. USCA Supp., Title 44, § 307

The court did not err in sustaining the demurrers to the affidavit of illegality and in dismissing it.

Judgment affirmed. Sutton, C. J., and Worrill, J., concur.