G. W. Varn, W. L. Varn and H. B. Harrell, Copartners Under the Name of Valdosta Motor Company, Appellants, v. J. F. Ashbrook, Appellee, 84 Fla. 626

Per Curiam. An automobile was delivered to tbe purchaser thereof upon part payment and the execution of a contract reserving title to the automobile in the seller until the balance of the purchase price be paid, the amount being evidenced by promissory notes referred to in the contract of sale. The contract of sale and the notes were assigned to another and the contract of sale was referred to in the transfer as a mortgage. The notes were not paid and the assignee brought foreclosure proceedings on the contract of sale.

Pursuant to the statute on attachment proceedings the court ordered a sale of the automobile and the proceeds were placed in the register of the court. Testimony was taken on the merits of the foreclosure. On final hearing the court dismissed the bill and ordered the money delivered to the complainants, doubtless upon the theory that the contract of sale could not be a mortgage. An appeal was taken by the complainants and the appellee assigned cross-errors as allowed by the rules of the court, asserting error in awarding the proceeds of the sale to .complainants.

As the contract retaining the title to secure the payment of the purchase money notes referred to in the contract of sale may in equity on the showing made, be regarded and treated as a mortgage at the election of the seller or his assignee, and such election having been made, it-is binding and operates to vest the title in the purchaser -subject to a lien for the purchase money which may be enforced in equity. See Aycock Bros. Lumber Co. v. First Nat. Bank of Dothan, 54 Fla. 604, 45 South. Rep. 501; American Process Co. v. Florida White Pressed Brick Co., 56 Fla. 116, 47 South.

Rep. 942; Jones on Mortgages (7th ed.) Sections 196, 1449, 257, 279. Reversed for appropriate proceedings, the money in the registry of the court -to be duly applied on the indebtedness. It is so ordered. Browne, C. J., and Taylor, Whitfield, Ellis, and West, J .J., concur.