Cofer v. Benson

• Decision Date: 27 January 1894
• Citation: 92 Ga. 793,19 S.E. 56
• Parties: COFER v. BENSON.
• Court: Georgia Supreme Court

19 S.E. 56

92 Ga. 793

COFER

v.BENSON.

Supreme Court of Georgia.

Jan. 27, 1894.

Lien on Crops—Discharge as to Mortgage.

A tenant having mortgaged his whole crop, and this mortgage being duly recorded, and his landlord having thereafter received enough of the crop-y-on which he had a special lien for rent, superior to the mortgage—to satisfy his claim for rent in full, this claim was discharged, relatively to the mortgagee, and the right of the latter to collect his mortgage debt out of that part of the crop not delivered to the landlord. The tenant had no power to consent to any application by the landlord of the subject-matter of the lien for rent, which would leave that lien in force to the prejudice of the mortgagee, relatively to so much of the crop as the iandlord did not receive.

(Syllabus by the Court.)

Error from superior court, Wilkes county; H. McWhorter, Judge.

To the proceeds of the sale of property by the sheriff, W. W. Cofer and James A. Benson filed claims of priority. From a judgment for Benson, Cofer brings error. Reversed.

Colley & Sims, for plaintiff in error.

W M & M. P. Reese, for defendant in error.

SIMMONS, J. Benson rented to Hilliard a tract of land for the year 1891 for $150. Hilliard then owed him an open account for the year 1890, of $108. In May, 1891, Hilliard mortgaged to Cofer the crop planted on this land to secure a debt for supplies which Cofer had furnished him, and the mortgage was duly recorded. After the crop matured, Hilliard delivered to Benson, out of the crop made on the land, cotton which Benson sold for $232.05; and Benson, with the consent of Hilliard, applied the proceeds first to the payment of his open account, and the balance to the rent. Cofer foreclosed his mortgage upon the balance of the crop, and had the mortgage fi. fa. levied upon it; and Benson sued out a distress warrant for the balance of his rent, and this was also levied upon the same property. The crop was sold by the sheriff, and, the proceeds not being sufficient to satisfy both claims, the question as to which of these parties was entitled to the fund was submitted to the court, without the intervention of a jury. The court decided that the fund should be applied first to the balance due on the distress warrant, and the remainder to the mortgage fi. fa., and to this ruling Cofer excepted.

As between the parties themselves, when a payment is made by a debtor to a creditor holding several demands against him, the debtor has the right to direct the claim to which it shall be appropriated; and if he falls to do so the creditor has the right to appropriate it, at his election. If neither exercises this privilege, the law will direct the application in such manner as is reasonable and equitable, both as to parties and third persons. Code, § 2869. In all cases, due regard must be had to the rights of third persons. Where one of the claims held by...