Stroud v. Hancock

• Decision Date: 09 August 1902
• Citation: 42 S.E. 496,116 Ga. 332
• Parties: STROUD. v. HANCOCK, Sheriff.
• Court: Georgia Supreme Court

42 S.E. 496

116 Ga. 332

STROUD.

v.HANCOCK, Sheriff.

Supreme Court of Georgia.

Aug. 9, 1902.

CHATTEL MORTGAGE—FORECLOSURE—DEFENSES—BOND.

1. When, in defense to the foreclosure of a chattel mortgage, the defendant files a counter affidavit, and gives a bond intended to be such as the statute requires in such cases, and thereupon the papers are returned to court, and the issue thus formed tried upon its merits, —the parties treating the bond as being in conformity to the statute, —held that, after judgment against the defendant, the surety on such bond, though the same be really only a forthcoming bond payable to the levying officer, and conditioned for the delivery of the property at the time and place of sale, will not be heard to set up in defense to an action by the officer on the bond that no demand or notice to produce the property had been given, or that no levy had been in fact made, or that there was really no such property in existence, belonging to the defendant in execution, as that described in the levy or in the bond.

(Syllabus by the Court.)

Error from superior court, Crawford county; W. H. Felton, Jr., Judge.

Action by Jack Hancock, sheriff, against J. W. Stroud's executrix. Judgment for plaintiff. Defendant brings error. Affirmed.

W. J. Wallace and H. A. Mathews, for plaintiff in error.

Hardeman, Davis, Turner & Jones, for defendant in error.

FISH, J. Jack Hancock, sheriff of Crawford county, brought suit against Mrs. Stroud, widow and executrix of J. W. Stroud, making by his petition substantially the following case: In October, 1897, Napier Bros, foreclosed in the superior court of Pike county a mortgage on personalty against A. G. Simmons, and petitioner, as sheriff, duly levied on the property in Crawford county. Simmons filed an affidavit of illegality tothe mortgage foreclosure, and gave a bond for the forthcoming of the property, signed by himself as principal, and J. W. Stroud as surety. On the trial of the issue formed on the affidavit, the illegality was dismissed, and judgment was rendered in favor of Napier Bros, for damages. The property was then duly advertised for sale in the paper in which the sheriff's advertisements are published, and, when the day of sale arrived, the sheriff, during the legal hours and at the legal place of sale, called for the property, and it was not forthcoming. By reason of the breach of the forthcoming bond, petitioner was damaged in a named sum, for which he prayed judgment. To this petition the defendant filed a general demurrer, which was overruled. She also filed a plea in which she averred that, for want of sufficient information, she was unable to either admit or deny the allegations of the petition with reference to the foreclosure of the mortgage, and the filing and trial of the affidavit of illegality, but denied that any levy had ever been made upon the property described in the petition, and claimed that she, as executrix of her husband, had never been notified to produce the property at the time and place of sale, and had no notice that J. W. Stroud had ever signed such a bond as the one sued on until after his death, and long after the time when the property was advertised for sale. The sixth paragraph of the petition averred "that it was impossible for J. W. Stroud to produce said property at [the] time and place of sale, as J. W. Stroud was dead, and it was also impossible for her to produce said property, not having received any notice to produce same on said first Tuesday in November, 1898; * * * that the property mortgaged to Napier Bros, by A. G. Simmons, and which it is alleged in plaintiff's petition was levied on by Jack Hancock, sheriff, was not the property of said A. G. Simmons; that at the time of the execution of said mortgage A. G. Simmons did not own the property mortgaged to Napier Bros., nor did A. G. Simmons own any such property at the time it is alleged said mortgage was foreclosed; * * * that it was impossible for her to produce said property, as she is informed that no such property as is described in said bond was ever in existence, that A. G. Simmons never did own any such property, and that Jack Hancock, sheriff, never did levy upon or seize any such property as is described in said bond; * * * that when said mortgage fi. fa. was placed in the hands of Hancock, sheriff, he * * * turned said fi. fa. over to W. J. P. Lowe, deputy sheriff; that when said deputy sheriff went to make said levy * * * he was informed * * * that A. G. Simmons did not own any such property as set forth in said mortgage fi. fa., and for this reason said deputy sheriff did not make levy; that on the following morning A G. Simmons came into Knoxville, and went to Hancock, sheriff, and told him that he would admit or acknowledge levy, whereupon Hancock, sheriff, made entry of levy on [the] fi. fa.; that, at the time J. W. Stroud signed said bond, Hancock, sheriff, well knew that no legal levy had been made on the property set out in said bond, and well knew, also, that the recital in said bond to the effect that said property had been levied upon by him was not true in fact; that it was the duty of Hancock, sheriff, to put said J....