Mcdonald v. Penny

• Decision Date: 31 March 1886
• Citation: 76 Ga. 796
• Court: Georgia Supreme Court
• Parties: Janes & McDonald. vs. Penny.

76 Ga. 796

Janes & McDonald. vs. Penny.

Supreme Court of the State of Georgia

MARCH TERM, 1886.

Mortgages. Debtor and Creditor. Appropriation of Payments. Before Judge Estes. Floyd Superior Court. September Term, 1885.

Reported in the decision.

Junius F. Hillyer, for plaintiffs in error.

No appearance for defendant.

Jackson, Chief Justice.

Janes & McDonald, as transferees of an execution in favor of McBride & Co. vs. H. M. Penny, had the execution levied upon certain property of Penny, who met it with an affidavit of illegality, that the same was paid, the other grounds being abandoned. The case was submitted to the judge without jury, on the following agreed statement of facts:

"Janes & McDonald sold a stock of goods to H. M. Penny for twelve or thirteen hundred dollars, taking therefor twelve or thirteen one-hundred dollar notes, of which the following is a copy:

'$100. June 14, 1SS4. 120 days after date, I promise to pay to the order of Janes & McDonald one hundred dollars, given for a stock of drugs and fixtures; the said stocks and fixtures. bound for the payment of the above note. H. M. Penny.

Presence of T. J. Davis, Ex official L. P.' "This note was endorsed by Janes & McDonald and contained the following entries on the back: \'Filed for record, May 16, 1885.

A. E. Ross, Clerk.'

' Georgia, Floyd County. Recorded in clerk's office in Superior Court, in book J of Mortgages, page 128, No. 92. May 16, 1885.

A. E. Ross, Clerk. Fee 25 cts.'

"It was agreed that the official part of the witness's name, N. P., ex officio J. P., was added by the witness himself a few days before the filing of said note as a mortgage. It was also agreed that the official part of the officer's signature was not omitted by accident on his part, and that it was added without the knowledge or consent of H. M. Penny. McBride & Co. obtained judgment against H. M. Penny on the 20th day of February, 1885, for sixty-three dollars;fi fa., issued from justice court on said judgment, was levied on the stock of drugs designated in the aforesaid mortgage note on the 4th day of May, 1885. The said fi, fa. was transferred for value to Janes & McDonald on the 15th of May, 1885, and the sale postponed for one month, to-wit, 19th day of June, 1885. Prior to the sale, the said mortgage notes having been foreclosed, the mortgage fi. fas. were placed in the hands of the bailiff to claim the money arising from the sale of said goods. After sale, the bailiff disposed of his levy on the McBride fi. fa. with an entry showing that the money arising from said sale was applied to two of the said mortgage fi.fas. as being older liens. On the 3d of July, 1885, the said McBride fi. fa. was levied on certain real estate as the property of defendant. Whereupon said defendan...