Continental Fertilizer Co. v. J.F. Madden & Sons
| Decision Date | 15 May 1913 |
| Citation | 78 S.E. 460,140 Ga. 39 |
| Parties | CONTINENTAL FERTILIZER CO. v. J. F. MADDEN & SONS et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
There was no merit in the motion to dismiss the writ of error.
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 on the ground that his admissions could not affect his transferee, and that he should be sworn as a witness.
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.
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.
This being so, other grounds of attack on it and rulings as to evidence bearing on them need not be dealt with.
The movant not being entitled to any part of the...
To continue reading
Request your trial