One Lovett purchased of Roberts & Gurr a mule named “ Babe,” at the price of $194, and paid them in cash one *702hundred dollars of this amount, giving them his note for $94, by the terms of which the title to the mule was to remain in Roberts & Gurr until it was fully paid for. At the same time, Lovett gave Roberts & Gurr a mortgage upon another mule named “Mollie,” as a further security for the payment of the note. The note and mortgage were both written on the same sheet of paper; both were duly attested by E. C. Smith, a notary public of Pulaski county; both bore the same date, and were duo on the first day of November, 1883, and both were duly recorded within time (the entry of record on February 16th, 18S4, as it appears in the record, is a mistake-in copying; it should have been 1883, as was admitted by both parties on the hearing in this court, and as is apparent from other parts of the record). Lovett was committed to jail on the 6 th day of June, 1883, and on the 8th day of that month, he directed Roberts to take possession of the mule, Babe, surrendering to him his right to redeem the same. Roberts applied to Harkins, who had possession of the mule, to deliver her up, but Harkins at first declined to do so ; he subsequently, however, on the same occasion, made an arrangement with Roberts (who had become the sole owner of the note and mortgage, by an agreement with his partner) by which he paid him the full amount of the note and took from him a written transfer and assignment of the mortgage; this transfer was dated 8th of June, 18S3. On the 2d day of August, 1883, Lovett executed a mortgage to Grice <& Ryan, conveying to them “ one bay mare mule named ‘ Babe,’ bought from W. M. Roberts, of Hawkinsville, Ga.,” to secure the payment of a note of the same date given by Lovett to them. This mortgage was foreclosed, and an execution issued on the judgment of foreclosure on the 4th day of August, 1883, which was levied on the mortgaged property two days thereafter. To this levy Harkins interposed his claim, and upon the trial of the issue thus formed, the jury found the property not subject, and the plaintiffs, Grice & Ryan, made a motion for a new trial upon various *703grounds, which was refused, and they brought the case here for review.
It is not necessary to set out specifically and in detail the several grounds of this motion, as, in the view we take? most of them are inapplicable to the case as made by the evidence.
1. Was this, under the facts, a sale by Lovett to Roberts and by Roberts to Haskins, the claimant? Hid the right of redemption and possession both pass out of Lovett prior to the transaction with Grice & Ryan ? We think so, and that by tho arrangement made by Lovett with Roberts in the jail, on tho 8th day of June, 1883, Lovett relinquished to' Roberts his right to rédeem, and gave him the possession of the mule, so far as he could do so under tho circumstances. This being tho case, Roberts was fully authorized to dispose of the mulo, and he did so dispose of it by the arrangement he made with Haskins. It is evident that he parted with all title and interest he had in the animal by this agreement; to affect the vesting of the title in Haskins, tho assignment of the mortgage was unnecessary, and it is most probable that it was taken to protect his title, in case any controversy arose concerning it. Writing is not necessary to pass the title to personal property; this may be affected by sale and delivery. When the plaintiffs took their mortgage, Lovett had no title or interest whatever in the property mortgaged; there was nothing to which the lien of the mortgage could attach, and tho security was as worthless as it would have been had property been mortgaged to which Lovett had never had tille, and in which he had never acquired any interest whatever. In this view, the court committed no error that could inj uro i he pffaintiffs, if indeed there was error at all in repelling evidence going to show t hat Haskins had testified, on a former occasion and upon another trial, that the only title he claimed was derived from Roberts under the transfer of the note and mortgage. There was nothing in this testimony that could have modified or affected the case, *704as it was presented at the hearing, and it is therefore immaterial; it could not, at least it should not, have brought about a different result than that reached on the trial.
2. But even if the incumbrance on the title to the mule had not been removed by Lovett’s surrender of his interest to Roberts by his bestowing on him the right to take possession of her, the plaintiffs in this mortgage were not in a legal sense innocent and bona fide mortgagees or purchasers. The paper reserving the title had been properly' recorded, Code, §1955 (a); and the omission of the clerk to enter the fact of the record on the paper, if true, did not invalidate or affect its registry; but it would be going-very far to hold, under the facts in this caso, that the record was not duly entered on the paper containing the contract in reference to the retention of title.*
3. The plaintiffs set up an equitable claim to the sum of. money which Lovett paid the sellers upon the purchase of the mule. If they could have overcome the insuperable barrier in their way interposed by Lovett’s parting with his right to redeem, then their claim to this amount would have been unavailing, because they have neither paid nor offered to pay that portion of the purchase money which i hey admit by their pleading to be still due. Alston vs. Wingfield, 53 Ga., 18; Lackey vs. Bostick; 54 Id., 45; 68 Id., 817; 69 Id., 614.
The other question made, that the court erred in refusing to entertain the equitable claim set up by the plaintiffs in this proceeding, if erroneous in this view, was error that did not hurt. Whether the claim, if properly pleaded, would have been available, see 55 Ga., 348, and citations; 54 Id., 690, 691.
Judgment affirmed.
The note and mortgage were on the same sheet of paper; on the back of it was indorsed an entry thatit was recorded. All of this was on the back of the mortgage, except a smaM portion which extended over the s’gnature of the note. (Rep.)