Cont'l Fertilizer Co v. Sons

• Decision Date: 15 May 1913
• Citation: 140 Ga. 39,78 S.E. 460
• Court: Georgia Supreme Court
• Parties: CONTINENTAL FERTILIZER CO. v. J. F. MADDEN & SONS et al.

(140 Ga. 39)

78 S.E. 460

CONTINENTAL FERTILIZER CO.

v.J. F. MADDEN & SONS et al.

Supreme Court of Georgia.

May 15, 1913.

(Syllabus by the Court.)

1. Motion to Dismiss.

There was no merit in the motion to dismiss the writ of error.

2. Evidence (§ 222^*)—Admissions—Chattel Mortgages—Foreclosure—Disposition of Proceeds—Rule Against Sheriff—Evidence.

Where a money rule was brought against a sheriff, and while it was pending the movant transferred to another the mortgage fi. fa. under which the property had been sold, and such transferee, by order of court, was substituted as the movant, this did not render admissions made by the original movant prior to the transfer, when offered in evidence on the hearing of the rule by contestants for the fund, subject to objection op. the ground that his admissions could not affect his transferee, and that he should be sworn as a witness.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 786-800, 803, 808; Dec. Dig § 222.*]

3. Chattel Mortgages (§ 288*)—Foreclosure—Disposition of Proceeds—Right of Contestants to Attack Mortgage.

Where a fund was raised by the sale of property under an execution based on the foreclosure of a mortgage signed by the defendants as a firm, which (as well as its members) was conceded to be insolvent, and where, under a money rule, such fund in the hands of the sheriff was claimed by other contestants who held executions based on mortgages on different parts of the property as that of the individuals claimed by the first mentioned creditor to be members of the firm, and by creditors holding common-law executions against such individuals, and where the contestants denied the existence of the firm or that the property was firm property, such contesting creditors could attack the mortgage held by the movant on the ground that it was based on an illegal and immoral consideration, namely, the settlement of a prosecution for a felony, and was not therefore entitled to the fund.

(a) The pleadings set up this ground of attack, and it was admitted by all parties that the firm and its members were insolvent; and no objection was duly raised to the sufficiency of the pleadings.

(b) Even if the fund in court were to be conclusively treated as that of a firm because arising from a sale under an execution against the firm, yet, as such firm and its members were insolvent, holders of liens against the partners could attack a mortgage against the firm, covering the same property, in order to obtain priority of payment of their claims.

[Ed. Note.—For other cases, see Chattel Mortgages, Cent. Dig. §§ 577, 578; Dec. Dig. § 288.*]

4. Chattel Mortgages (§ 73*)—Validity— Notes Secured—Legal Consideration.

The evidence was sufficient to sustain the finding that the note which the mortgagee joined in giving to the fertilizer company was given to suppress a criminal prosecution, and was not binding. If so, and there was no liability on such note by the mortgagee, the mortgage given as a part of the transaction was without legal consideration.

[Ed. Note.—For other cases, see Chattel Mortgages, Cent. Dig. § 144; Dec. Dig. § 73.*]

5. Evidence Rulings Immaterial.

This being so, other grounds of attack on it and rulings as to evidence bearing on them need not be dealt with.

6. Appeal and Error (§ 880^2-*)—Scope of Review—Parties Not Appealing.

The movant not being entitled to any part of the fund, and no other party excepting, the manner of its distribution among the other contestants and for the payment of the cost furnished no ground for a reversal.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3584-3590; Dec. Dig. § 880.*]

7. No Error.

None of the other errors assigned require a reversal.

Error from Superior Court, Pike County; R. T. Daniel, Judge.

Action by J. J. Hudgins against A. U. & J. C. Hudgins. Judgment for plaintiff, execution levied and property sold, and plaintiff brought rule against the sheriff to require him to pay over the fund and several contestants for the fund intervened. After rule brought, plaintiff's assignee, the Continental Fertilizer Company, was substituted as movant. From an adverse judgment the Continental Fertilizer Company brings error. Affirmed.

J. J. Hudgins foreclosed against A. U. & J. C. Hudgins, as a firm, by affidavit, a mortgage on certain cotton raised on two plantations. The execution was levied and the property sold. The plaintiff in fi. fa. brought a rule against the sheriff to require him to pay over the fund. After the rule was brought, J. J. Hudgins assigned the mortgage fi. fa. to the Continental Fertilizer Company, and an order was taken substituting it as the movant. Several other contestants for the fund intervened. One held an execution against J. C. Hudgins, based on the foreclosure of a mortgage on the crop raised on one of the plantations. Another held an execution against A. U. Hudgins, based on the foreclosure of a mortgage on the crop on the other plantation. A third had taken out an attachment against A. U. Hudgins, based on notes signed by A. U. & J. C. Hudgins, and caused the sheriff to be garnished. This creditor (a firm) also brought a common-law action on the notes against J. C. Hudgins. Pending the rule against the sheriff, the firm last mentioned obtained a judgment on the attachment against A. U. Hudgins and also a common-law judgment against J. C. Hudgins. Still another contestant held an execution against A. U. Hudgins based on the foreclosure of a laborer's lien on a part of the crop which produced the fund.

The case was, by consent, submitted to the presiding judge without a jury. All parties conceded that certain taxes, a claim for rent, and the laborer's lien should be paid. The contestants attacked the execution of the movant on...