48 Ga. App. 488 | Ga. Ct. App. | 1934
On February 4, 1930, Chattooga County Bank obtained a judgment against F. M. and John Dodd. On April 28, 1931, the execution issued thereon was levied on mules which, for convenience of discussion, are herein numbered: (1) One blue mare mule, 15 hands high, 14 years old, known as the N. IC. Bitting mule. (2) One bay mare mule, 3 years old, about 14 hands high. (3) One bay horse mule, 14 years old, 15 hands high, known as the John Eivers mule. (4) One bay mare mule, 9 years old, about 15 hands high. O. A. Selman filed his claim to the mules so levied upon. The jury, by direction of the judge, found that mules 1 and 2 were not subject to the fi. fa., and that mules 3 and 4 were subject to the fi. fa. The verdict was in part adverse to both parties, each claiming the right to all the mules; and each party filed a motion for a new trial, which was overruled. On these respective judgments overruling the motions for a new trial, the parties assign error in separate bills of exceptions.
In ease 23141 the Chattooga County Bank contends that the court erred in directing the jury to find that mules 1 and 2 weré not subject to the levy. O. A. Selman, the claimant and the defendant in error in that case, showed by undisputed evidence that on February 20, 1929, John Dodd, defendant in fi. fa., executed a bill of sale to the Farmers and Merchants Bank of Summerville, conveying mules 1 and 2, and that on November 1, 1929, that bank transferred the bill of sale to O. A. Selman, the claimant. Therefore it appears that the bill of sale which was executed and recorded on February 20, 1929, and which took the title to the two mules out of Dodd, the defendant in execution, and the transfer of the bill of sale by the Bank of Summerville on November 1, 1929, which placed the title to the mules in O. A. Selman, the claimant, were both older than the judgment of the Chattooga County Bank, which was procured on February 4, 1930; and the evidence further showed that O. A. Selman held the title to the mules at the time the judgment was obtained by that bank. However, the Chattooga County Bank contends that the mules were subject to its fi. fa. because the bill of sale of February 20, 1929, which was transferred
We think the court properly directed the verdict exempting mules 1 and 2 from the levy. They were not the property of Dodd, the defendant in fi. fa., at the time of the judgment or the levy, and Dodd had not owned them for more than two years prior to the levy. On the contrary, the claimant O. A. Selman had acquired title to these mules more than three months before the Chattooga County Bank obtained its judgment, and more than seventeen months before the levy was made. There is no evidence to show that the title to these two mules ever, reverted to the defendant in execution after he parted with it by making a bill of sale on February 20, 1929. On the contrary, the conditional-sale contracts of February 19, 1931, and April 14, 1932 (which were executed after the judgment of the bank was obtained), both specifically provided that the title to the property conveyed should remain in O. A. & T. H. Selman until the note given by Dodd was paid; and that indebtedness was never satisfied, and the bill of sale executed by Dodd on February 20, 1929, had never been canceled or surrendered to Dodd. The case of Williams v. Donalson, 84 Ga. 593 (10 S. E. 1015), cited by counsel for Chattooga County Bank, is differentiated by its facts from the instant case. The Williams case arose upon a rule for the distribution of money. Two mortgages given by the defendant in fi. fa. to Williams individually were ac
Mules 3 and 4 were held subject to the fi. fa., and O. A. Selrnan, the claimant, contends that these two mules were not subject to the fi. fa. of the Chattooga County Bank, because Dodd, the defendant in execution, had no title to them, for the reason that at the time of the levy on April 28, 1931, the legal title was in O. A. & T. H. Selrnan, a partnership of which the claimant was a member, under a conditional-sale contract from Dodd, defendant in execution, dated February 19, 1931, and in which O. A. & T. H. Selman retained title to the mules; and O. A. Selrnan’s interest in the partnership was a sufficient basis for his interposing a claim. The Chattooga County Bank contends that a claim filed by an individual can not be supported by proof of title in a partnership, the partnership being a different legal entity.
The contention of O. A. Selrnan, claimant, is supported by the evidence and the law applicable to the state of facts shown by the evidence. The evidence disclosed two very material facts relative to mules 3 and 4: first, that Dodd, the defendant in execution, never acquired title to them; and secondly, that Selrnan, the claimant, did have an interest in the legal title to them. These two mules were not included in the bill of sale of February 20, 1929, from Dodd to Farmers and Merchants Bank. Selrnan claims these mules under a conditional-sale contract and a promissory note made by. Dodd to O. A. & T. H. Selrnan on February 19, 1931 (after
This brings us to a consideration of the question whether O. A. Selman had a legal right to file a claim to these two mules when the title thereto was in the partnership of which he was a member. In Wheeler v. Martin, 145 Ga. 164 (88 S. E. 951), it was held: “Where property is levied on under a fi. fa., and a statutory claim is interposed by a third person, it is not essential that the claimant should have absolute title as a basis for interposing the claim. Any interest which renders the property not subject to the fi. fa., or which is inconsistent with the plaintiff’s right to proceed in selling the property, will support a claim.” In the opinion in that case (p. 166) the .court said: “While an uninterested person can not interpose and maintain a statutory claim on the levy of an execution (Parker v. Matthews, 106 Ga. 49, 52, 31 S. E. 784), nor show paramount title in a third person (Rowland v. Gregg, 122 Ga. 819,
Judgment affirmed in case No. 23111; reversed in case No. 23160.