2. Failure to record a conditional bill of sale has the same effect as failure to record a deed of bargain and sale, and, therefore, although unrecorded, the claimant's instrument here is superior in rank to the subsequent lien of the plaintiff which was one created by operation of law.

This is an appeal from a judgment rendered by the Judge of the Superior Court of Gwinnett County against Associates Discount Corporation, the claimant in a case involving foreclosure of a mechanic's lien under Code 67-2003 by K. B. Willard against an automobile delivered to him for repairs by Vyron Adams, and on which he performed work of the value of $192.50. Willard's affidavit was filed in a justice court on April 9, 1957. On July 23, 1957, the plaintiff in error, an adverse judgment having been rendered against it in the justice court, filed an appeal to Gwinnett Superior Court together with bond for the eventual condemnation money payable to Willard. The bill of exceptions in this case recites that on June 13, 1957, "the Associates Discount Corporation filed a claim and issued a forthcoming bond and replevy bond and took possession of the automobile." This claim was specified in the bill of exceptions as a part of the record by the plaintiff in error, but the Clerk of the Superior Court of Gwinnett County, in response thereto certified "that the claim referred to in liens 3 of the within bill of exceptions was never filed in this office, and therefore I am unable to forward copy of same." No evidence is included in the record except that the bill of exceptions has attached thereto a copy of the retention title contract for the automobile in question dated October 15, 1956, between Adams and Cuz Bell Motor Company, the assignor of the plaintiff in error. The bill of exceptions also recites that this bill of sale, together with "the recording thereon" was introduced in evidence. There is also a stipulation, appearing in the bill of exceptions, that K. B. Willard did repair the automobile for a price of $192.50. The case was heard de novo by the superior court on its merits without the intervention of a jury, the issue being whether the claimant should prevail over the mechanic's lien of the plaintiff, and judgment was entered in favor of the latter to which the claimant excepted.

2. The conditional bill of sale, which is practically the only evidence in this record, affirmatively shows that legal title to the automobile in question never vested in the defendant Adams, who was engaged in the purchase of the automobile and had an equity therein to the extent of his purchase money only. It was executed on September 15, 1956, recorded in the county of residence of the vendor on September 20, and recorded in the county of residence of the vendee on April 18, 1957, 9 days after the affidavit of foreclosure of the mechanic's lien was filed. The sole question for consideration is therefore the relative priorities of an unrecorded conditional bill of sale and an affidavit of foreclosure of a mechanic's lien on personalty under Code 67-2401. The lien is one arising not by contract but by operation of law. It has been well settled that since the act of 1931 (Ga. L. 1931, p. 153; Code 67-109, 67-1305) an unrecorded bill of sale to secure debt has the same effect as a deed of bargain and sale, and, therefore, although unrecorded, is superior in rank to subsequent liens created by law. Mackler v. Lahman, 196 Ga. 535 (1) (27 S. E. 2d 35); Manchester Motors v. Farmers & Merchants Bank of Manchester, 91 Ga. App. 811 (87 S. E. 2d 342). By the act of 1957 (Ga. L. 1957, p. 167; Code, Ann., 67-1403) "the effect of failure to record a conditional bill of sale shall be the same as is the effect of failure to record a deed of bargain and sale." It follows that this instrument, although it was unrecorded in the proper county as of the time this action was commenced, has priority over it. The only difficulty in arriving at this conclusion is that there is nothing in this record to show when or if a claim of lien was ever filed by Willard against Adams in the first instance, or to show when the work on the automobile was completed. It does appear that when the automobile was levied upon it was in the custody of Adams, and it further appears that Adams acquired whatever right or title to the automobile that is in him under his contract of conditional sale with Cuz Bell Motor Company. That contract gave him no title against which the lien could operate so long as the paramount outstanding title remained in the plaintiff in error. Accordingly, the trial court erred in entering up judgment against the claimant.