Mulherin v. Porter

• Decision Date: 06 February 1907
• Docket Number: (No. 56.)
• Citation: 58 S.E. 60,1 Ga. App. 153
• Parties: MULHERIN. v. PORTER et al.
• Court: Georgia Court of Appeals

58 S.E. 60

(1 Ga. App. 153)

MULHERIN.

v.PORTER et al.

(No. 56.)

Court of Appeals of Georgia.

Feb. 6, 1907.

1. Landlord and Tenant — Distress Warrant—Levy.

Although a distress warrant cannot be levied upon property which has already been seized under judicial process, such distress warrant may be placed in the hands of the levying officer, and, upon a rule to distribute the fund, may assert its lien.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 32, Landlord and Tenant, § 1094.]

2. Marshaling Assets and Securities— General Rule.

The general rule, obtaining in the marshaling of assets and securities, that if one creditor, by virtue of a lien or other interest, can resort to two funds, and another creditor to only one of them, the former must seek satisfaction out of that fund which the latter cannot touch, is subject to the limitation that such marshaling must not be applied to the detriment of a third person with an equity equal to or greater than that of the creditor seeking to invoke the rule. Beneficiaries of a homestead have such an equity and interest in the homestead estate as to be within the protection of this limitation.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Marshaling Assets and Securities, § 8.]

(Syllabus by the Court.)

Error from City Court of Richmond County; Eve, Judge.

Rule by one Mulherin to distribute a fund arising from an execution sale against Frank Harris. Porter and Eve intervene. Judgment for intervenors, and plaintiff briugs error. Affirmed.

F. W. Capers, for plaintiff in error.

William H. Barrett and Joseph Ganahl, for defendants in error.

POWELL, J. The plaintiff In error, Mulherin, brought a rule to distribute the fund arising from the sale of certain corn which had been levied upon and sold as the property of one Frank Harris under a common-law fi. fa. which Mulherin had obtained against him. In response to the rule, Porter and Eve intervened, and made it appear that the corn in question was subject to a lien in their favor for rent which was superior to Mulherin's judgment, and that distresswarrants had been sworn out for this rent and had been placed in the sheriff's hands for the purpose of claiming the proceeds. In addition to these facts it was conceded upon the hearing that the defendant Harris had applied for and obtained a homestead which did not include the property in question, also that he had other crops, which, though included in the homestead, were subject to the liens of Porter and Eve, but which could not be levied on by Mulherin's fi. fa., on account of being exempt under the homestead. It was agreed upon the trial that these additional crops were sufficient to pay the rents. The trial court awarded the funds to Porter and Eve, and Mulherin excepted, alleging that the judgment was erroneous: "(1) Because the distress warrants were without lien on the fund in the hands of the sheriff, for the reason that they were proceeding to assert the special lien of the landlord upon the crop of the year, and this lien had not been perfected by levy. (2) Because, in addition to the corn levied upon by the sheriff, proceeds from the sale of which are in his hands, there was other produce grown on said premises for the same year, on which these distress warrants may be levied, sufficient to pay off said distress warrants, out of which the plaintiffs in distress warrants may realize their claim, and from levying upon which plaintiff in fi. fa. is debarred by the defendant's homestead; and it is an equitable principle that if two plaintiffs have liens on the same person, and one plaintiff may attach two funds, and the other but one, the plaintiff having the right to proceed against the two funds will be turned upon that fund out of which the...