Cofer v. Barnett

99 Ga. 307 | Ga. | 1896

Simmons, C. J.

1. There being a controversy between a landlord and another concerning certain cotton raised by a tenant of the former and which had been delivered to him by the tenant, the landlord contending that he had a lien upon the same for supplies furnished the tenant and the other person contending that he was entitled to this cotton under a bill of sale from the tenant, and these contestants having agreed that the landlord might retain and dispose of the cotton and that he should -pay the other contestant its value, if indebted to him “in a settlement of this matter before the court,” the question of the landlord’s liability to depend upon whether or not his lien was in law superior to the bill of sale, it was error on the trial of an action of trover for the recovery of the cotton, subsequently brought by the -holder of the bill of sale against the landlord, at which the -above recited facts indisputably appeared and at which the existence, validity and superiority of the landlord’s lien, though the same had not been foreclosed, were shown, to direct a verdict for the plaintiff.

August 18, 1896.

Trover. Before Judge Reese. Wilkes superior court. November term, 1895.

Colley & Sims, for plaintiff in error. W. M. & M. P. Reese and Irvin & Wynne, contra.

2. Under the circumstances above stated, the respective rights of the parties did not depend upon the question of foreclosure, but upon the question of legal superiority as between the lien and the bill of sale; and under the evidence submitted -the verdict should have been for the defendant.

3. The effect of the agreement between the parties was to take this case out of the rule laid down in Duncan v. Clark, 96 Ga. 263, and the cases upon which it rests. Judgment reaersed.