85 Ga. 439 | Ga. | 1890
In this case, G. M. C. Brannér being indebted to several creditors, they sued and obtained general judgments against all his property, upon which writs of execution issued. After these judgments were obtained against Branner, he sold and conveyed to Gamble certain land, by a deed containing a warranty of title which was also a warranty against al'l encumbrances. After this deed of conveyance was made by Branner to Gamble, the plaintiffs in error obtained judgments against Branner which constituted liens upon all the property which Branner then had. The land which had been conveyed to Gamble and other lands and personal property owned by Branner were sold under the
It may be stated as a general rule that, in cases like this, if the equities of the contesting parties are precisely the same and one not superior to the other, the doctrine of contribution would prevail, that is, the whole fund would be first made to bear the payment of the superior lien so as to make each fund of the contestants
"We are aware that there are some decisions to the contrary of this doctrine, hut a large majority of the
The record shows that certain of the older judgments were rendered by the justice court without jurisdiction, the summons not having been filed fifteen days before the term of court at which these judgments were rendered. It was admitted in the argument before us that these judgments should not participate in the fund at all. Of course the court below should take care that no execution issued on a void judgment shall take part in the distribution of the fund. Aud if he shall find, upon the return of this case, that any such judgments exist, the executions issued thereon should be ruled out from any participation in the fund.
Judgment affirmed with direction.