National Broadway Bank v. Denny

• Court: Georgia Supreme Court
• Writing for the Court: HOLDEN, J.
• Citation: National Broadway Bank v. Denny, 65 S. E. 412, 133 Ga. 227 (Ga. 1909)
• Decision Date: 14 August 1909
• Parties: NATIONAL BROADWAY BANK et al. v. DENNY.

65 S.E. 412

133 Ga. 227

NATIONAL BROADWAY BANK et al. v. DENNY.

Supreme Court of Georgia

August 14, 1909

Syllabus by the Court.

The court committed error in overruling the demurrer to the amendment to the petition.

No sufficient reason is shown why the motion to dismiss the bill of exceptions should be granted, and it is overruled.

Error from Superior Court, Floyd County; G. E. Maddox, Judge Pro Hac.

Action by R. A. Denny, executor, against the National Broadway Bank and others. Judgment for plaintiff, and defendants bring error. Reversed.

Henry Walker, for plaintiffs in error.

M. B Eubanks, for defendant in error.

HOLDEN J.

The defendant in error, Denny, as executor of King, filed an application to enjoin the sale of certain real estate alleged to be the property of his testate. The original bill averred several grounds upon which an injunction was asked. An amendment was filed, making, among other allegations substantially the following: The property was levied upon by virtue of a fi. fa. in favor of the plaintiff in error hereinafter called the "bank," against McGhee & Co., and others. The land levied upon is a part of a tract of land conveyed to King by Moore as receiver of Holt by deed dated January 28, 1893. The land thus deeded to King was sold to Holt by McGhee July 6, 1888. Holt paid McGhee part of the purchase money, and McGhee took the notes of Holt for the balance thereof, and Holt went into possession of the property at the time of the purchase, and remained therein until Moore was appointed his receiver. The receiver sold the lands, on the first Tuesday in June, 1892, for the sum of $800. King bought the property at this receiver's sale. At the time the bank's judgment was rendered, and at the time of the sale, Holt owed a balance on the purchase money amounting to $750 principal. King, after his purchase, sold approximately three-fourths of the property to Mrs. Kendrick and Mrs. Beysiegel. At the time the fi. fa. was levied upon the land now claimed by the defendant in error, it was also levied upon the land sold, as above stated, to Mrs. Kendrick and Mrs. Beysiegel, and by a judgment of the court the portions sold to Mrs. Kendrick and Mrs. Beysiegel have been found not subject to the fi. fa. At the time the bank's judgment was rendered, the only interest of the defendant McGhee in the land was the right to receive the balance of the purchase money, as the property had been sold and bond for title made three years before the judgment was rendered. King bought the property in good faith, and has improved it and the portion now held by him is about one-fourth of the property sold by McGhee to Holt and by Holt's receiver to King. The part now claimed by defendant in error cannot be subject to the fi. fa. in favor of the bank to a greater extent than its proportionate part of the unpaid purchase money at the time the judgment was rendered, which should be not more than one-fourth thereof. Defendant in error is ready and able, if the property is found subject to the fi. fa., to pay such proportionate part of the unpaid purchase money to which it may be subject. He prays that the sale be enjoined and the amount of liability of the property to the judgment be fixed by a decree of the court, and that upon payment thereof the property be discharged from the lien of the judgment. The judge of the superior court was disqualified to try the case, and it was submitted to the Honorable G. E. Maddox as judge pro hac vice, who by consent of the parties heard the case without a jury upon the evidence submitted. Upon the trial the court rendered a decree holding: "That plaintiff is entitled to an apportionment as alleged and prayed for in the amended petition. The court finds that the property described in said petition is subject to and liable to said fi. fa. to the extent of one-fourth of the unpaid purchase money, as shown by the principal and...