Keese v. Coleman & Co.
| Decision Date | 28 February 1884 |
| Court | Georgia Supreme Court |
| Parties | Keese. vs. Coleman & Company. |
Partnership. Debtor and Creditor. Insolvency. Mortgage. Liens. Before Judge Clarke. Randolph Superior Court. May Term, 1883.
Reported in the decision.
W. C. Workill; A. Hood, Jr., by brief, for plaintiff in error.
W. D. Kiddoo, for defendants.
Pulaski & Company held a mortgage on a stock of goods of Knighton & Keese, also on a horse belonging to Knighton, of the firm of Knighton & Keese, which mortgage was afterwards, for value, transferred to E. H. Keese, the father of E. A. Keese, which latter was one of the firm of Knighton & Keese. Knighton agreed with E. H. Keese, the transferee of said mortgage, that the horse should be sold, and the money arising from the sale of the horse should be paid to E. H. Keese, in discharge of an individual debt which Knighton owed E. H. Keese; the sum which the horse brought was one hundred and twenty dollars; and this was done.
S. T. Coleman & Company held a mortgage, executed by Knighton & Keese on the same stock of goods covered by the mortgage made to Pulaski & Company and transferred to E. H. Keese, junior to this last mentioned mortgage, but the same was not on the horse mentioned in the Pulaski mortgage. The goods were sold by the sheriff under foreclosure of these mortgages. S. T. Coleman & Company brought a rule against the sheriff, claiming that the money raised from the sale of the mortgaged goods should be paid to them on their mortgage, because they alleged that the Pulaski & Company mortgage, which had been transferred to E. H. Keese, had been paid off. E. H. Keese claimed the money because his mortgage was the older lien. The presiding judge charged the jury that the reception of the one hundred and twenty dollars by E. H. Keese from the sale of the horse by Knighton, and the payment of the same on an individual debt held by E. H Keese on Knighton, operated as a payment pro tanto on the mortgage held by E. H. Keese as transferee from Pulaski & Company. And this ruling of the court below is here complained of.
The rule that partnership property is first bound to pay partnership debts, and individual property to pay individual debts, is well recognized. Code, §1918; 9 Ga, 319; 19 Id; 87; 21 Id., 398; 27 Id; 302; 28 Id; 371; 47 Id; 415.
The doctrine of a lien on two funds does not apply in this case. It seems to us, as the horse was the individual property of Knighton, and the partners and...
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