Printup Bros. & Co. v. Turner

• Decision Date: 28 February 1880
• Citation: 65 Ga. 71
• Court: Georgia Supreme Court
• Parties: Printup Brothers & Company. v. Turner. Turner. v. Printup Brothers & Company et al.

65 Ga. 71

Printup Brothers & Company. v. Turner. Turner. v. Printup Brothers & Company et al.

Supreme Court of the State of Georgia

(February Term, 1880.)

*Partnership. Title. Deeds. Mortgage. Before

Judge Underwood. Floyd Superior Court. September Term, 1879.

This case arose upon a money rule against the sheriff for the distribution of the proceeds of certain property sold under execution. The facts were, in brief, as follows:

On May 22d, 1869, lot 118, in the Coosa division of the city of Rome, was conveyed to John Bones, John Brown, James W. Bones and John S. Bones, individually. On September 4th, 1872, lot 119 was conveyed to J. & S. Bones & Co., as a firm. On April 1st, 1874, "James W. Bones, John S. Bones, John Brown and John B. Dougherty, merchants and partnerscomposing the firm of J. & S. Bones & Co., " executed to Turner a mortgage to secure the payment of a promissory note for $17,500 00, due at twelve months, bearing interest at twelve per cent, per annum. The mortgage was signed by each partner individually, and the note by J. & S. Bones & Co. At the March term, 1879, of Floyd superior court, a rule absolute was obtained on the mortgage in favor of Turner against James W. Bones, John Brown and John B. Dougherty. At the same term, Printup Brothers & Co., and other creditors obtained judgments against the firms of J. & S. Bones & Co., and Bones, Brown & Co., and against James W. Bones and John Brown, as survivors of both firms.

John Bones, one of the joint owners of lot 118, was no party to any of the debts nor to any of the suits. John S. Bones was a party to all of the debts, but having died, was not a party to any of the suits.

The declaration of Printup Brothers & Co. was against "James W. Bones, John M. Bowie and John Brown, as survivors of J. & S Bones & Co. (John S. Bones, of said firm, being now deceased), as makers, and of said county of Floyd and John Brown and John B. Dougherty, of the county of Richmond, state of Georgia, survivors of the firm using *the name and style of Bones, Brown & Co., of said county of Richmond (John S. Bones, of said firm, being now deceased), as indorsers." The process was headed by substantially the same statement of parties, and required the defendants to be and appear, etc. The verdict and judgment were against the defendants, as sued, for $4,485.31 principal, $128.00 interest to date, $300.00 damages, and costs.

L, ots 118 and 119 were sold under the execution of Printup Brothers & Co., notice being given that the mortgage lien would look to the proceeds, thus presenting an unincumbered title. The former brought $3,100.00 and the latter $2,100.00.

The court distributed the fund as follows:

                --------------------------------------------------------
                |Costs on execution of Printup Brothers & Co.|$32 85   |
                |--------------------------------------------|---------|
                |Sheriff's commission and making deed        |68 50    |
                |--------------------------------------------|---------|
                |To mortgage fi.fa.of Seth Turner            |3, 067 77|
                |--------------------------------------------|---------|
                |To fi.fa.in favor of Printup Brothers & Co. |943 56   |
                |--------------------------------------------|---------|
                |First National Bank of ROme                 |677 20   |
                |--------------------------------------------|---------|
                |To fi.fa.infavor of Rounsaville & Brother   |211 17   |
                |--------------------------------------------|---------|
                |To fi.fa.infavor of E.J.Stevens             |198 95   |
                |--------------------------------------------|---------|
                |Making in all the sum of                    |$5,200 00|
                --------------------------------------------------------
                

To this judgment Printup Brothers & Co. excepted, and say the court erred as follows:

1. In ordering and deciding that one-half of the three thousand and twenty-four dollars and ninety cents (being the proceeds or money raised from the sale of lot No. 118) should be applied to and paid on the mortgage fi. fa. of Seth Turner, or that any portion thereof should be paid op said mortgag fi. fa.

2. In ordering and deciding that three-fourths of two thousand and se\ enty-three dollars and seventy-five cents (being the proceeds or money raised from the sale of lot No. 119) should be applied to and paid on the mortgage fi. fa. of Seth Turner, or that any portion thereof should be paid on said fi. fa.

3. In holding and deciding that three thousand sixty-seven *dollars and seventy-seven cents, the proceeds of the sale of said lots Nos. 118 and 119, should be applied to and paid on the mortgage fi. fa. of said Seth Turner, or that any portion thereof should be paid on the same.

4. In not holding and deciding that the proceeds and money arising from the sale of lots Nos. 118 and 119 should be applied to and paid on the judgment and fi. fa. of Printup Brothers & Co, and especially in not holding and deciding that the money arising from the sale of lot No. 119 (sold as the property of J. & S Bones & Co.), should be applied to and paid on the judgment and fi. fa. of Printup Brothers & Co., and other common law fi. fas. of equal priority or same date against said defendants

5. In deciding and holding that the mortgage held by Seth Turner had been legally foreclosed, and that said mortgage fi. fa. had been duly and legally issued thereon, and in deciding that the said mortgage fi. fa. was a lien on said money in court arising from the sale of said lots or any part thereof.

Turner also excepted, and says the court erred as follows:

1. In awarding any part of the proceeds of the sale of city lots Nos. 118 and 119 to the payment of the costs of the fi. fa. in favor of Printup Brothers & Co., except so much as was necessary to pay for the levy and advertisement, when there was money enough in the sheriff's hands arising from other sales under the same fi. fa. to pay all the costs due on the same, not otherwise disposed of.

2 In not according to the mortgage fi. fa. in favor of Seth Turner the entire proceeds of the sale of said two city lots Nos. 118 and 119, in the Coosa division of the city of Rome.

3. In awarding any part of said proceeds to the fi. fas. in favor of the other claimants.

D. S. Printup; Dabney & Fouche; Halstead Smith, for Printup Brothers & Co. et al.

Alexander & Wright; J. Branham, for Turner.*

CRAWFORD, Justice.

The above two cases involving the same subject matter, and arising out of the same decision of the court below, were argued together and will be disposed of as one case.

The litigation arose over the distribution of a fund brought into court by the sheriff, under a sale made by virtue of certain fi. fas. in favor of Printup Br...