140 Ga. 39 | Ga. | 1913
(After stating the foregoing facts.) The evidence was sufficient to warrant the finding that the mortgage under the foreclosure of which the fund arose was given as a part of an arrangement to suppress a criminal prosecution which had been begun by the transferee of it, and that it was not supported by a legal consideration. Penal Code, §§ 328, 329; Civil Code, § 4491; Southern Express Co. v. Duffey, 48 Ga. 358; Godwin v. Crowell, 56 Ga. 566; Wheaton v. Ansley, 71 Ga. 35; Jones v. Dannenberg Co., 112 Ga. 426 (37 S. E. 729, 52 L. R. A. 271).
It was urged that where a fund is brought into court by a sale under an execution against.a certain defendant, the fund is to be treated as his, whether the property sold was in fact his or not, as the purchasers bought subject to the doctrine of caveat emptor; and it was sought to apply that principle to an execution against a firm and contestants for the fund holding liens against the alleged partners. This argument seems to overlook three things by which it may be affected: that the alleged partners are not strangers to the firm and its funds and debts, and a firm debt is also a debt of the .partners; that the alleged firm and its members being conceded to be insolvent, unless the lien creditors of the individuals can attack the .claim asserted against the firm, they must fail to obtain any payment; and that on the trial of a money rule equitable principles may be invoked by pleading and evidence. Civil Code, § 5348.
The pleadings of the contestants set out their respective claims and attacked the mortgage under which the movant claimed. No point was raised on the trial as to the sufficiency of the allegations,, but on the contrary the insolvency of the' debtors was admitted.
The headnotes sufficiently state the rulings without further elaboration.
Judgment affirmed.
