Under the Code, § 8-905, it is provided that "in a contest between attachments and ordinary judgments or suits, it is the judgment [on attachment] and not the levy which fixes the [priority of the] lien." Code, § 67-108, provides for the recording of mortgages, conditional-sale contracts etc. Where such instrument is not recorded it "shall operate as a lien upon the property of the mortgagor only as against the mortgagor himself and those having actual notice of such mortgage." Code, § 67-1401, provides that conditional sales of personal property, in order for reservation of title to be valid against third parties, shall be evidenced in writing. Code, § 67-1403, provides for their recordation. In order to affect creditors who obtain liens before the vendor reclaims the property the conditional-sale contract must be recorded, but actual notice will dispense with the necessity of recording. Rhode Island Locomotive Works v.Empire Lumber Co., 91 Ga. 639 (17 S.E. 1012); Henry VogtMachine Co. v. Bailey, 2 Ga. App. 204, 206 (58 S.E. 314).
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 the Code, §§ 67-1601 et seq. In a rule to distribute money arising from the sale of personal property to which the vendor thereof had an unrecorded retention-of-title contract, but which contract had been foreclosed before the issuing of an attachment against the purchaser in favor of an unsecured creditor on the ground that the purchaser had absconded, the court properly adjudged the proceeds thereof to belong to such vendor. The proceeding by the vendor of the property levied on, in foreclosing his contract as provided for in Code, §§ 67-1601 et seq., was the same as a retaking or reclaiming of the property. He could have taken an action in trover or a purchase-money attachment. His election to proceed by foreclosure did not prevent his claim to the books sold from being a prior claim to that of a subsequent attachment creditor, it not appearing that such creditor stood in the relation of a purchaser *Page 430 from the vendee. The subsequent attaching creditor was not a judgment creditor before actual notice to it of the retention-of-title contract. The cases cited by movant are in respect to contests between holders of unrecorded mortgages and purchasers or judgment creditors. See Douglass v. McCrackin,52 Ga. 596; Cambridge Tile Co. v. Scaife Co., 137 Ga. 281 (73 S.E. 492); Richards v. Myers, 63 Ga. 763; Hosch v.Smith, 31 Ga. App. 91, 92 (119 S.E. 667). In the last case cited it will be noted that the attaching creditor had prosecuted his action to a general and special judgment with a properly recorded execution "all prior to the time that judgment was obtained on the unrecorded mortgage." In the present case we have a conditional purchase-money contract. Even were it an unrecorded mortgage, it had been foreclosed and execution had issued thereon and claimed the proceeds of the property in the hands of the sheriff before the issuance of the attachment in favor of the plaintiff in fi. fa. We adhere to our opinion.
Rehearing denied. Broyles, C. J., and MacIntyre, J., concur.