103 Ga. 102 | Ga. | 1897
When this case was here before (96 Ga. 211), it was held that the court erred in granting a nonsuit. By that decision it is settled that if the holder of a junior mortgage on personal property, with knowledge of the existence" of a senior mortgage, receives the mortgaged property from the mortgagor, and with his consent appropriates it in whole or in part to the satisfaction of the junior mortgage, and then places it beyond the reach of an execution issued upon the foreclosure of the senior mortgage, he is liable to the plaintiff in that execution for the value of the property thus received and disposed of, but not, of course, in a sum exceeding the amount due upon such execution. An examination of the opinion of Chief Justice Simmons will show that the right to recover was placed solely upon the fraudulent conduct of the junior mortgagee in so dealing with the property as to defeat the rights of the senior mortgagee. He uses this language: “ If one who knows that another has a mortgage on personal property wilfully destroys the property, he will certainly be subject to an action by the mortgagee for damages. And su we think, if a junior mortgagee knows of a superior mortgage lien, and by collusion with the mortgagor secures the goods and hides them or mixes them with his own so that they can not be identified, seized and sold, the senior mortgagee would have equally a right of action against such junior mortgagee for damages; and that this is true although the junior mortgagee may have acted solely for the purpose of securing his own debt. He has no right to thus deprive the senior mortgagee of the priority which the law gives him; and if he does so, we think he should be held liable for such damage as the senior mortgagee may thereby sustain.” The underlying principle of the decision is, that one who, in attempting to preserve his own rights, fraudulently deprives another of a right, will be liable to such person. It will be noted that the words “knowledge” and
Judgment reversed.
