Welsh v. Son

• Decision Date: 30 September 1883
• Citation: 71 Ga. 387
• Parties: Welsh et al. vs. Lewis & Son et al.
• Court: Georgia Supreme Court

71 Ga. 387

Welsh et al. vs. Lewis & Son et al.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1883.

Mortgage. Witness. Liens. Before Judge Fort. Macon Superior Court. May Adjourned Term, 1883.

On December 27, 1881, R. L. Massey gave his note to John F. Lewis & Son for $510.20, due January 24, 1882, and on the day he gave the note he executed and delivered to Lewis & Son, for the purpose of securing the payment of the same, a mortgage on the following described property, viz: "All of my entire stock merchandise now on hand and hereafter to be received, contained in my brick store, west side of Dooly street, between Hill & Shumate and Vinson & Jarnigan." This mortgage was headed "$510.00, Montezuma, Macon county, Ga.;" was executed in the presence of O. C. Cheeves, a notary public, a brother-in-law of E. B. Lewis, who was a member of the firm of Lewis & Son, and was recorded on January 3, 1882, in Macon county. On December 3, 1881, before the note was due, Lewis & Son sued out an attachmentagainst Massey for the purpose of collecting the debt, on the ground that Massey was fraudulently disposing of his property. The sheriff, on the same day, levied the attachment on a stock of goods in the town of Montezuma, consisting of whiskies, brandies, wines, tobaccos, cigars, canned goods, bar fixtures, show cases, etc., as the property of Massey, and on the 19th, 20th, and 21st days of January, 1882, by virtue of his levy under this attachment and an order to sell, granted by the ordinary under section 8648 Of the Code, sold the goods for $599.63. No notice was given by any one at the sale that the goods were sold free from the mortgage lien. Both Massey and E. B. Lewis, a member of the firm of John F. Lewis & Son, were present at the sale, but had no agreement that the goods should be sold free from the mortgage lien. They had no conversation on the subject, but each of them thought that the effect of the sale would be to free the goods from the lien of the mortgage. The goods sold for their full value and were purchased by various persons. Massey was insolvent at the time he gave the note and mortgage, and at the time of the sale and since. He had but one stock of goods— that sold, and but one place of business—the store in Montezuma where said goods were. There was no other property subject to the mortgage. The mortgage was foreclosed on January 24, 1882.

After the sale, and while the sheriff had the proceeds, plaintiffs in error, Welsh et al., placed in his hands, with notice to hold up said funds, various justice court fi. fas. issued upon judgments rendered in their favor against E. L. Massey subsequently to the date of the mortgage of Lewis & Son and after the sale of the goods. Lewis & Son ruled the sheriff. Plaintiffs in error having been made parties to the rule, upon the hearing, the foregoing facts were proved.

Plaintiffs in error moved to quash the mortgage fi. fa. of Lewis & Son upon the following grounds:

(1.) That O. C. Cheeves, the notary public who attestedthe mortgage, was the brother-in-law of E. B. Lewis, who was a member of the firm of John F. Lewis & Son at the time of the attestation, and he was the only witness to said mortgage.

(2.) That the description of the property mortgaged, at set forth in the mortgage and mortgage fi. fa. was too meagre, indefinite, vague and uncertain to affect the rights of other creditors.

The court overruled the motion to quash the mortgage fi. fa., and after hearing argument, ordered the sheriff to pay over the fund in his hands, less the cost of the proceeding, to John F. Lewis & Son, on their mortgage fi. fa. Welsh et. al. excepted.

W. H. Fish; Hawkins & Hawkins; R. G. Ozier; J. M. DuPree, for plaintiffs in error.

T. P. Lloyd; N. A. Smith, for defendants.

Jackson, Chief Justice.

It appears from the record that the mortgage of defendant in error was foreclosed before either of plaintiffs in error had recovered a judgment against the defendant whose property had been sold after it was attached, being perishable, under an order for that purpose passed by the ordinary, by virtue of authority vested in him by ...