Green v. Ford

• Decision Date: 28 April 1887
• Citation: 3 S.E. 624,79 Ga. 130
• Parties: GREEN v. FORD.
• Court: Georgia Supreme Court

3 S.E. 624

79 Ga. 130

GREEN v. FORD.

Supreme Court of Georgia

April 28, 1887

Appeal from superior court, Worth county; BOWER, Judge.

Walters and Arnhein and W. W. Corbett, for plaintiff in error.

John Murrow and D. H. Pope, (by Harrison and Peeples,) for defendant.

HALL J.

Green executed to Ford and another a mortgage on two lots of land and also upon certain turpentine, to be gathered from the trees boxed on the lands named in the mortgage, to secure the payment of a debt of $1,500 due to them. This mortgage was assigned by the original mortgagees to parties with whom they had dealings in Savannah or Brunswick. It was subsequently reassigned to Ford, the defendant in error; and upon its being reassigned to him he foreclosed it, not only upon one of the lots of land, but upon the turpentine crops. The plaintiff defended these foreclosures upon the ground that the mortgage had been fully paid off.

It seems that by consent of Ford, who by reason of the assignments became the sole mortgagee, one of the lost of land mortgaged was sold, with came the sole mortgagee, one of the lots of land mortgaged was sold, with the understanding and agreement that the proceeds of the sale should be applied to the payment of the mortgage debt. Ford kept an account with this mortgagor, and charged him up with with the amount of this mortgage, and also charged him with various amounts of money and goods advanced subsequent to this transaction. The account as to the mortage indebtness was kept together with that for subsequent advances and supplies. Taking the value of the turpentine delivered, with the amount arising from the sale of this mortgaged lot of land, and applying the two sums to the mortgage, it was extinguished and paid off. It should, however be stated that when these payments were made, the mortgagor did not direct how they should be appropriated; and it is proper to remark, in this connection that there was evidence tending to show that Green, the mortgagor, had knowledge of the manner in which these equal payments were appropriated, and that he made no objection.

When the turpentine was delivered, and goods were purchased, or money advanced by Ford to the mortgagor upon the general account between them, and allowing a credit for all those payments by the delivery of turpentine, and by the proceeds of this mortgaged lot of land, the entire amount of the account was not paid off. Ford appropriated, with the consent of this defendant, as he alleges, those payments of turpentine to the unsecured portion of the account; and the issue submitted was whether this was a proper appropriation of the payments. The jury found that it was, and that upwards of $800 was still due upon the mortgage, and, inferentially at least, that the payments derived from the turpentine satisfied and paid the unsecured portion of the account. Thereupon a motion for new trial was made by Green, upon various grounds, both general and special, which was refused.

The charge of the court covers every phase of the case, and presents the...