115 Ga. 53 | Ga. | 1902
The Atlanta Trust and Banking Company, hereinafter called the “bank,” filed in the superior court of Eulton county a petition for a rule against J; W. Nelms as sheriff. The material allegations of this petition were: On the 3rd day of May, 1898, the bank obtained a judgment against Lavender R. Ray, in
The case made by all of the plaintiff’s pleadings, reference being here had to the original petition and all the amendments thereto, was in substance as follows: On February 20, 1891, Lavender B. Bay contracted to purchase from E. S. Morris certain described real estate in the county of Fulton. By the terms of the contract Bay agreed to pay for the land $7,000 — $1,200 in cash and the balance in three installments to become due on the 20th day of February in the years 1892, 1893, and 1894, respectively. In pursuance of this agreement Bay made the cash payment, gave promissory notes to Morris, and took from the latter a bond for title. On the 20th day of April, 1892, Bay contracted with J. H. James to sell him one half of the land purchased from Morris, and received from James $3,120 in cash and three promissory notes each for the sum of $1,960, maturing respectively on the 20th day of February, 1892, 1893, and 1894. In order to carry out this last contract and enable James to secure a title to the portion of the land purchased by him, the bank was constituted trustee, and received the
James promptly paid his notes, except the last one due February 20,1894, “which was to pay the note from Ray to Morris.” The bank, having paid the latter, extended the time of payment to James, and his last note was in fact paid May 26,1895. But as Ray had transferred his bond for title from Morris to the bank to secure Ray’s note of $1,500 to it, or any renewal thereof, it was agreed between Morris, Ray, and the bank, that the deed to Ray, left in escrow, should not be delivered, “ but that said deed so held in escrow should so remain in escrow until the indebtedness due said . . [bank] was paid by Ray, and said . . [bank] should make a bond for title to said Ray, to either deliver said deed, or make a deed to said Ray.” This agreement was actually carried into effect, and a deed made by Morris to Ray, and placed in the hands of the bank, remained in its hands, and it gave a bond for title to Ray. Ray has never paid any portion of the indebtedness evidenced by his $1,500 note, but on December 20,1895, renewed the same, giving
The plaintiff tendered an amendment to its pleadings, containing the following allegations and prayers: “ Immediately before the sale of the property in question, plaintiff applied to the sheriff to know if any other executions against L. E. Eay had been placed in his hands claiming the fund arising from the sale of said property to be sold that day, and the reply was that no executions had been placed in his hands. Immediately after the sale of the property,
Judgment affirmed.