1. The material facts are stated by the reporter. Properly construed, the petition filed by the City National Bank was not really a proceeding to enforce the lien of the mortgage which had been executed and de*94livered by Shelton to Burr, and by the latter assigned to the bank. The only prayer for substantial relief against Shelton, the only defendant residing in Spalding county, was to recover a general judgment against him on the notes given by him to Burr,.and which Burr had assigned to the bank along with the mortgage. As to Baker, another defendant, who resided in Bartow county, the petition should be treated as ¿either more nor less than an action against him founded upon his alleged promise to pay to the bank the debt of Shelton secured by the mortgage. As to Turner, the other nonresident defendant, the object of the petition was simply to attack the title to the goods which he claimed to have derived by purchase from Baker, as being only colorable and not real, and therefore to have him dealt with by the court as a mere nominal owner of the goods, and consequently, deprived of the possession and control of them pending the litigation. The above, we think, sets forth, in a condensed form, the real nature and character of the plaintiff’s petition with respect to each of the several defendants.
2. Even if Baker did purchase from Shelton the interest of the latter in the stock of goods, as alleged in the petition; and if, as a part of the consideration of that purchase, Baker contracted with Shelton to pay the mortgage debt of the latter held by the bank, the latter, being no party to this agreement, has no right whatever to treat Baker as a joint promissor with Shelton so as to render both of them subject to suit in the same action, either legal or equitable, in Spalding county, Baker being a resident of Bartow, as already stated.
3. Even if the action was well brought as against all the defendants, no just cause for appointing a receiver or for enjoining the sale of the mortgaged goods by Baker or Turner appeared. There was no allegation of insolvency as to either of them; but on the contrary, the *95proof showed, they were Loth solvent. Consequently, it was not necessary for the court to take possession of the stock of goods for the purpose of making available to the bank any judgment it might recover against these non-resident defendants. Besides, the greater part of the assets covered by the mortgage — in fact, most probably all of them — were necessary to pay the partnership-debts; and as these debts are superior to and have priority over the lien of the mortgage, which lien is restricted to the interest of Shelton in the residue of the assets of the partnership after the payment of all its liabilities, it is not in the least degree likely that the bank would realize a cent upon the mortgage after administration by a receiver. It certainly would not, if the costs and expenses of such administration proved as disastrous to the fund as is usual in the majority of receivership cases.
Judgment reversed.
AI-generated responses must be verified and are not legal advice.
