Ennis v. Haralson

• Citation: 28 S.E. 839,101 Ga. 282
• Parties: ENNIS v. HARALSON et al.
• Decision Date: 21 May 1897
• Court: Supreme Court of Georgia

28 S.E. 839

101 Ga. 282

ENNIS v. HARALSON et al.

Supreme Court of Georgia

May 21, 1897

Syllabus by the Court.

1. That money due to several tenants in common upon a policy of fire insurance was, after the dissolution of a garnishment which had been served upon the insurance company at the instance of a creditor of one of these tenants, collected from the company, and used in rebuilding the property destroyed affords no reason for defeating the garnishment.

2. A mortgage does not pass title, and therefore cannot be made the basis of a claim to the mortgaged property; nor can the holder of an unforeclosed mortgage claim the proceeds of such property without showing equitable reasons entitling him to do so; and, among these, it must, in a case like the present appear that the mortgagor is insolvent.

Error from city court of Columbus; J. M. McNeill, Judge pro hac.

Garnishment by Haralson Bros. & Co. against a debtor of J. W. Ennis. T L. Ennis interposed a claim to the fund in suit, and, from a judgment for plaintiffs, claimant brings error. Affirmed.

Henry C. Cameron and W. H. McCrory, for plaintiff in error.

Battle & Miller, for defendant in error.

LUMPKIN P.J.

1. The heirs at law of Mrs. Ennis were entitled to $500 upon a policy of fire insurance which had been issued to her in her lifetime. A creditor of J. W. Ennis, one of these heirs caused a garnishment to be served upon the insurance company, to which the latter made answer, in effect stating that J. W. Ennis and four others were, as such heirs, each entitled to a distributive share in the amount due by the company to the estate of Mrs. Ennis. The garnishment was dissolved by T. L. Ennis, another of the heirs, who traversed the answer made by the insurance company, and claimed the interest of J. W. Ennis in the fund. The money due upon the policy was accordingly paid over to the claimant, and was expended by him in replacing the burned building. In the policy, the company had reserved the right to rebuild, in case of loss, in lieu of settling in cash for any damage which might be sustained by the insured in the event the building burned. It did not, however, elect to exercise this right. The claimant sought to defeat the garnishment because of the fact that the money received under the policy had been used as above stated. There is no merit in this position. It is obvious, without discussion, that the exercise by the company of its...