O.C.G.A. § 44-14-280 (2019)

Annotations

JUDICIAL DECISIONS The remedies provided by O.C.G.A. §§ 44-14-210 and 44-14-280 are distinct and altogether independent of each other. Macon Sav. Bank v. Jones Motor Co., 168 Ga. 805, 149 S.E. 217, 1929 Ga. LEXIS 250 (1929); Jackson v. Parks, 49 Ga. App. 29, 174 S.E. 203, 1934 Ga. App. LEXIS 247 (1934). Remedy not exclusive. - The remedy provided in O.C.G.A. § 44-14-280 is not exclusive. The owner has the right

also to bring trover. Hill v. Marshall, 18 Ga. App. 652, 90 S.E. 175, 1916 Ga. App. LEXIS 1169 (1916). In a contract for the sale of personal property, where the purchaser agrees that upon default in any payment due under the contract the purchaser will voluntarily surrender the property to the seller, to be sold and the proceeds applied upon the indebtedness, or agrees that upon such default the seller may institute tro-

ver proceedings to recover the property, etc., these remedies are cumulative of the seller’s right to collect the indebtedness in any other manner as provided by law; and the seller’s failure to pursue, for the collection of the indebtedness, any method prescribed in the contract for that purpose, cannot be a defense against the seller’s right to foreclose as provided by law under O.C.G.A. § 44-14-280. Jones Motor Co. v. Macon Sav. Bank, 37 Ga. App. 767, 142 S.E. 199, 1928 Ga. App. LEXIS 603 (1928), aff’d, 168 Ga. 805, 149 S.E. 217, 1929 Ga. LEXIS 250 (1929). There is nothing inconsistent in trying to collect the purchase price and at the same time retaining title as security for the unpaid balance of the price. An effort to collect payment does not constitute an abandonment of the security. Turner v. Kay Jewelry Co., 101 Ga. App. 173, 112 S.E.2d 783, 1960 Ga. App. LEXIS 820 (1960). Seller not estopped. - A suit by the seller to foreclose the contract as a mortgage under O.C.G.A. § 44-14-280 does not estop the seller from afterwards bringing an action of trover for the property. Hilliard v. GMAC, 54 Ga. App. 105, 187 S.E. 218, 1936 Ga. App. LEXIS 464 (1936); Turner v. Kay Jewelry Co., 101 Ga. App. 173, 112 S.E.2d 783, 1960 Ga. App. LEXIS 820 (1960); Whitehead v. Southern Disct. Co., 109 Ga. App. 126, 135 S.E.2d 496, 1964 Ga. App. LEXIS 812 (1964). Effect of action on title. - Where personalty is sold and title retained in the seller as security for the balance of the purchase money, an action by the seller to foreclose the contract as a mortgage under O.C.G.A. § 44-14-280, does not have the effect of transferring the title into the buyer. Hilliard v. GMAC, 54 Ga. App. 105, 187 S.E. 218, 1936 Ga. App. LEXIS 464 (1936); Turner v. Kay Jewelry Co., 101 Ga. App. 173, 112 S.E.2d 783, 1960 Ga. App. LEXIS 820 (1960); Whitehead v. Southern Disct. Co., 109 Ga. App. 126, 135 S.E.2d 496, 1964 Ga. App. LEXIS 812 (1964). A suit on a promise to pay the purchase price of the chattel to which the contract retains title does not admit that the title to the chattel is in the maker of the instrument. Turner v. Kay Jewelry Co.,

101 Ga. App. 173, 112 S.E.2d 783, 1960 Ga. App. LEXIS 820 (1960). Chattel mortgage foreclosures law applies. - The foreclosure of a conditional sales contract is governed by the law which applies to chattel mortgage foreclosures. A.D.L. Sales Co. v. Gailey, 48 Ga. App. 798, 173 S.E. 734, 1934 Ga. App. LEXIS 200 (1934); Dixon v. GMAC, 105 Ga. App. 413, 124 S.E.2d 660, 1962 Ga. App. LEXIS 939 (1962). A bill of sale to secure a debt may be foreclosed in the same manner as a chattel mortgage. Carroll v. Richards, 50 Ga. App. 272, 178 S.E. 178, 1934 Ga. App. LEXIS 737 (1934); Miller Serv., Inc. v. Miller, 77 Ga. App. 413, 48 S.E.2d 761, 1948 Ga. App. LEXIS 569 (1948). Conveyance to debtor not required. - O.C.G.A. § 44-14-280 does not suggest or require that the owner of a bill of sale of personal property shall convey or reconvey to the debtor the personal property covered by such bill of sale, prior to the foreclosure of the contract in the manner in which mortgages are foreclosed, or the recordation of such a conveyance. Macon Sav. Bank v. Jones Motor Co., 168 Ga. 805, 149 S.E. 217, 1929 Ga. LEXIS 250 (1929); Cobb v. Growers’ Fin. Corp., 40 Ga. App. 442, 149 S.E. 920, 1929 Ga. App. LEXIS 187 (1929). Bill of sale. - A promissory note given by a purchaser of personal property, in which it is agreed that title shall remain in the seller until the purchase money is paid, is not a “bill of sale,” and therefore cannot be foreclosed in a justice’s court under O.C.G.A. § 44-14-280. Berry v. Robinson & Overton, 122 Ga. 575, 50 S.E. 378, 1905 Ga. LEXIS 270 (1905); Wynn & Robinson v. Tyner, 139 Ga. 765, 78 S.E. 185, 1913 Ga. LEXIS 596 (1913). Showing that bill given to secure debt. - An absolute bill of sale intended to secure a debt may be foreclosed as provided in O.C.G.A. § 44-14-280, whether the fact that it is intended as security is shown by a bond to reconvey, or by other appropriate evidence. Denton Bros. v. Shields, 120 Ga. 1076, 48 S.E. 423, 1904 Ga. LEXIS 802 (1904). Conditional sales contract. - An instrument which recites that the promis-

sory note embodied therein, for a specified amount payable in installments, is given “for the purchase money” of described property, and that “the title to the above described property is to remain in the [seller] until fully paid for,” is a contract of conditional sale, retaining title in the seller until compliance by the purchaser with the conditions of the sale. Jett v. Gordon, 52 Ga. App. 370, 183 S.E. 346, 1936 Ga. App. LEXIS 633 (1936). Effect of homestead and exemption laws. - The setting aside of the property afterwards, as being exempt from levy and sale by virtue of the homestead and exemption laws, in no wise affected the previously acquired title of the lender. Where, after a levy upon the property under a proceeding to foreclose the bill of sale as provided in O.C.G.A. § 44-14-280, the borrower filed a claim to the property, upon the ground that it was exempt from levy and sale by virtue of the homestead and exemption laws, and where it appeared from the claim filed that the property levied upon was impressed with exemption after the borrower had executed the bill of sale to secure the debt to the lender, the court did not err in dismissing the claim on demurrer (now motion to dismiss) and allowing the levy to proceed. Tarver v. Beneficial Loan Soc’y, 39 Ga. App. 646, 148 S.E. 288, 1929 Ga. App. LEXIS 486 (1929).

Priority of lien. - The lien of an ordinary attachment upon which no judgment had been rendered is not superior to the claim of a vendor under a duly executed, but unrecorded, retention of title contract of sale of personal property which contract has been foreclosed under the provisions of O.C.G.A. § 44-14-280. Bank of Ringgold v. West Publishing Co., 61 Ga. App. 426, 6 S.E.2d 598, 1939 Ga. App. LEXIS 310 (1939). Real parties in interest. - Where plaintiff was the named seller in a conditional sale contract, and had acquired title to the property involved prior to the commencement of its foreclosure proceedings, it was error to dismiss the case on the ground that it did not show sufficient interest in itself to maintain the action. Jack Fred Co. v. Lago, 96 Ga. App. 675, 101 S.E.2d 165, 1957 Ga. App. LEXIS 661 (1957). Instructions. - It was not error to fail to charge the substance of O.C.G.A. § 4414-280 in the absence of a request; such a charge would not have aided the jury and the judge so charged that the jury could find a verdict based on whether they found pro or con as to specific facts. First Nat’l Bank v. Vinson, 102 Ga. App. 828, 118 S.E.2d 225, 1960 Ga. App. LEXIS 759 (1960).

RESEARCH REFERENCES Am. Jur. 2d. 69 Am. Jur. 2d, Secured Transactions, § 572 et seq. ALR. Right of conditional seller to retake property without legal process, 146 A.L.R. 1331. What conduct by repossessing chattel

mortgagee or conditional vendor entails tort liability, 99 A.L.R.2d 358. Replevin or claim-and-delivery: modern view as to validity of statute or contractual provision authorizing summary repossession of consumer goods sold under retail installment sales contract, 45 A.L.R.3d 1233.