Smith v. Worley
| Citation | 73 S.E. 428,10 Ga.App. 280 |
| Decision Date | 15 January 1912 |
| Docket Number | 3,359. |
| Parties | SMITH v. WORLEY. |
| Court | United States Court of Appeals (Georgia) |
Syllabus by the Court.
Where a creditor of a nonresident of this state sued out an attachment, and caused an ordinary garnishment to be served upon a resident of this state, and on the trial of an issue formed upon the garnishee's answer it appeared that before the summons of garnishment had been served the defendant in the attachment suit had transferred the fund which was owing to him by the garnishee to another nonresident creditor as security for a claim less in amount than that due from the garnishee to the defendant in attachment (the transfer, however, being a total, and not a partial, transfer of the fund), held, that such garnishment, unaided by any equitable pleadings, was ineffectual to reach the surplus coming to the defendant in attachment after satisfying the creditor holding the transfer as to the debt due him.
A deed of bargain and sale does not, by failure to record it, lose its priority over a creditor of the vendor subsequently obtaining lien by attachment or common-law judgment.
Lawful registration entitles a deed to admission in evidence without proof of its execution, in the absence of an affidavit of forgery, though the registration be not made until after suit is pending.
Error from Superior Court, Elbert County; B. F. Walker, Judge.
Action by B. F. Smith against J. N. Worley, executor. Judgment for defendant, and plaintiff brings error. Affirmed.
Z. B Rogers, for plaintiff in error.
Worley & Nall, for defendant in error.
POWELL J. (after stating the facts as above).
1. Unless the deed by which G. A. Worley conveyed his interest in his father's estate to his brother was void, or for some reason ineffectual as against the rights of the attaching creditor, the judgment of the trial court is correct, irrespective of any equitable rights that may have existed owing to the fact that the interest of the defendant in attachment may have been greater than the amount represented in the consideration of the deed by which he conveyed his interest to his brother. This is settled in principle by the case of Howard v. Porter, 99 Ga 649, 27 S.E. 725, where it is held that, in this class of cases, garnishment, unaided by any equitable pleadings, is ineffectual to reach the surplus coming to the defendant in attachment after his transferee, though holding for security only, has...
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Petrie v. Wyman
...that there was any surplus. Caldwell v. Coates, 78 Pa. 312, and cases cited; Howard v. Porter, 99 Ga. 649, 27 S.E. 725; Smith v. Worley, 10 Ga.App. 280, 73 S.E. 428. holder of such surplus, if any, must be made a party before the rights of such third party can be affected. 20 Cyc. 1101; Edw......
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... ... 623, 627(3); Gibson v ... Hough, 60 Ga. 588, 593; Lowe v. Allen, 68 Ga ... 225(b), 227; Davie v. McDaniel, 47 Ga. 195(5); ... Smith v. Worley, 10 Ga.App. 280(2), 282, 73 S.E ... 428. But under the subsequent recording act of 1889 ... (Ga.L.1889, p. 106, Civil Code of 1910, § ... ...
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Parham v. Heath
...is entitled to priority over the junior judgment. Evans Motors of Georgia, Inc., v. Hearn, 53 Ga.App. 703, 186 S.E. 751; Smith v. Worley, 10 Ga.App. 280(2), 73 S.E. 428; Donovan v. Simmons, 96 Ga. 340 22 S.E. 3. It is unnecessary to decide here whether the testimony of the claimant grantee ......