Semmes v. Boykin

• Decision Date: 31 January 1859
• Citation: 27 Ga. 47
• Parties: Paul J. Semmes, plaintiff in error. vs. Samuel Boykin,adm'r, and others, defendants in error.
• Court: Georgia Supreme Court

27 Ga. 47

Paul J. Semmes, plaintiff in error. vs. Samuel Boykin, adm'r, and others, defendants in error.

Supreme Court of the State of Georgia

JANUARY TERM, 1859.

In equity, from Muscogee county. Decision by Judge Worrill, at November Term, 1858.

This was a bill filed by Paul J. Semmes against Samuel Boykin, administrator of Narcissa Boykin, deceased. Francis M. Brooks, Sheriff of Muscogee county, and Robert S. Hardaway and others, judgment creditors of Edward T. Taylor.

The allegations of the bill are substantially as follows: That Paul J. Semmes held claims to the amount of $15,000 against Edward T. Taylor, and on the day of Sep-

tember, 1856, Taylor gave Semmes a mortgage on a house and lot in the city of Columbus, to secure the payment of said amount.

And at the May Term of the Superior Court of Muscogee county, 1857, Semmes got a judgment of foreclosure on said mortgage; and on the 1st Tuesday in November, 1857, the said house and lot so mortgaged was sold by the Sheriff and brought about the sum of $4,000, over and above costs, which sum is now in the Sheriff's hands for distribution.

At the August Term of the Superior Court of said county, 1853, one Narcissa Boykin, obtained a judgment against said Edward T. Taylor for $2,000, besides interest and costs, and on this debt said Taylor was only security, and one John C. Leitner was the principal; said fi. fa. is now in the hands of the Sheriff, claiming the money raised on the sale aforesaid.

The said Narcissa Boykin is dead and Samuel Boykin is her administrator. The said Jno. C. Leitner is also dead, and Hines Holt is his administrator.

Leitner in his lifetime was indebted to said Boykin in another considerable sum outside of the said $2,000 debt, and to secure the payment of this other sum to the said Boykin, the said Leitner gave to said Boykin a mortgage on his interest in a manufacturing establishment in Columbus. The amount now due on this claim by Leitner\'s estate, plaintiff, Semmes, can not prove without a discovery from Holt, the administrator. Leitner has been dead five or six years, and his estate is not yet administered. The administrator of Leitner represents his estate as being unable to pay its debts; but of its true condition plaintiff can prove nothing without a discovery from Holt, the administrator. The interest of Leitner in said factory has not been sold under said mortgage, nor has it been sold by the said administrator.

About the day of in the year 1856, Holt, the administrator of Leitner, had in his hands the sum of $4,000, and not wishing to hold the same, made a deposit of it in the hands of the said Narcissa Boykin, to be applied to the payment of Leitner's indebtedness to her and in such manner as the law would appropriate it.

At the August Term of the Inferior Court of said county, 1857, Robert S. Hardaway, Henry Lockhart and others obtained common law judgments against said Edward T. Taylor, amounting in all to about $1,500; and they have their fi,. fas. now in the Sheriff's hands claiming said money. On the 1st Tuesday in November, 1857, several lots of land in said county were sold by the Sheriff, as the property of said Taylor, under the old fi. fa. of Boykin, which land sold for about $1,000, and that sum is also now in the Sheriff's hands for distribution.

When Boykin obtained her judgment against Taylor in 1853, and since that time, said Taylor owned and possessed an interest in the Taylor Gin Factory in Columbus, which interest is sufficient to satisfy the $2,000 fi. fa. of Boykin, and is subject to the same; and this is the only claim to which said gin factory is subject; and the claims of Semmes, Lock-hart and others can not reach it.

The bill prays that Samuel Boykin, administrator, be enjoined from receiving the money in the hands of the Sheriff, in satisfaction of the said execution, and that he be compelled by the decree of the Court to proceed to collect said execution out of the estate of Leitner; that the said mortgage on the estate of Leitner be foreclosed, and that Boykin be enjoined from applying the said four thousand dollars, placed in the hands of his intestate by the administrator of Leitner (Holt) to the payment of said mortgage debt, but that the same be applied to the satisfaction of the execution against Taylor. That if said execution be not thus satisfied, that then the money in the Sheriff\'s hands, raised from the sale of Taylor\'s property, not embraced in complainant\'s mortgage, may be applied towards the payment of said execution held by Boykin against Taylor, in preference to the junior judgments against said Taylor; that the Sheriff and all said creditors be enjoined until the further order of this Court, &e.

Boykin, Hardaway, and Lockhart demurred to this bill, which demurrer, after argument, the Court sustained and dismissed the bill as to said parties. To which decision complainant excepted.

Complainant then moved to amend his bill by adding thereto, "the allegations appended to the same, bearing date this (that) day." Defendants objected to this amendment on the ground that the same was not sworn to. The court sustained the objection, and refused the motion to amend.

To which decision counsel for complainant excepted.

Ingram & Russell, represented by B. Hill, for plaintiff in error.

Dougherty, and E. A. Nisbet, contra.

By the Court.— Benning, J., delivering the opinion.

The Court below sustained the demurrer to the bill. The question, therefore, is, was there equity in the bill?

It may be assumed that there was equity in the bill, if the facts stated by it were such as to show that Semmes had the right to compel Boykin to seek satisfaction of his fi. fa., in whole or in part, out of some of the funds other than the fund raised by Semmes under his mortgage. Those funds were the $4,000 paid by Holt as administrator of Leitner to Mrs. Boykin; the money raised by the Boykin fi. fa. itself; the money raised by the other fi. fas.; the interest of Taylor in the gin factory.

Were the facts of the bill, then, such as to show that Semmes had this right?

First, were they sufficient to show that he had the right to compel Boykin to seek satisfaction of his fi. fa., in whole or in part, out of the $4,000 paid to his intestate, Mrs. Boykin, by Holt, as the administrator of Leitner?

At the time when Holt thus paid the $4,000 to her, she held two debts against his intestate, Leitner, viz.: one, a debt against Leitner as principal, and Taylor as surety, it being the debt on which the Boykin fi. fa. aforesaid against Taylor is founded; the other, a debt secured by a mortgage on Leitner's interest in the Coweta Falls Manufacturing Company. It is admitted, and is no doubt true beyond question, that if, when Holt paid this money to her, he directed her to apply it to the satisfaction of the former debt, in whole or in part, it was her duty so to apply it.

Now, he did, in fact, give this direction. The allegation in the bill is, that he placed this sum in her hands, "for the express purpose of being applied to the satisfaction of the said debts of the said Leitner, due to the said Boykin, one of them being the same debt upon which the said fi. fa. was issued against the said Taylor." Consequently, it washer duty to apply the sum, in part, to the payment of the former debt; and such an application of the money, if made, would, pro tanto, be a satisfaction of the fi. fa. against Taylor, as he was only a surety for the debt.

What part of the $4,000 was it that was to be so applied? Doubtless, a part proportioned to the part to be applied to the mortgage debt. What, then, was the part to be applied to the mortgage debt? That depended on a question, viz.: whether in stating the proportion, the mortgage debt was to be taken at its full amount, or taken only at the balance of that amount remaining after the mortgaged property had been applied to it. This is a...