20 Ga. App. 467 | Ga. Ct. App. | 1917
No question arises concerning the priority of the claim of Gantt. The controversy arises solely over the surplus fund arising from the sale of the land originally owned by H. K. Burns. It will be seen that J. K. Burns claims by virtue of his judgment against Wheeler as principal and H. K. Burns as indorser on the purchase-money notes given by Wheeler to H. K. Burns, the original owner, and indorsed'by the latter to him; and Hinton claims under his judgment setting up a special lien on the land, on a note and deed given by Wheeler while holding under his bond for title and while the purchase-money notes which are the basis of the judgment in favor of J. K. Burns were unpaid. J. K. Burns’s motion to dismiss the intervention of Hinton is more specifically based upon the ground that the funds arose from the sale of property belonging to H. K. Burns, against whom Hinton had no judgment, while the judgment of J. K. Burns is against both Wheeler and H. K. Burns, and that, since the funds to be distributed did not arise from the sale of the property of a debtor common to H. K. Burns and J. C. Hinton, the intervention could not properly lie. In support of this contention counsel for defendants in error cite Burns v. Long, 79 Ga. 530 (4 S. E. 877). The headnote in that case is as follows: “Where two firms, as creditors of different debtors, each held a mortgage given by the debtors respectively upon the same personal property, and one of the firms foreclosed their mortgage against their debtor, and caused the
A money rule is an equitable proceeding, and the court must, upon proper pleading, award the money in the hands of the officer to the person equitably entitled to it. Bradshaw v. Gormerly, 54 Ga. 557 (4); Coleman v. Slade, 75 Ga. 61 (15); Shumate v. McLendon, 120 Ga. 396 (48 S. E. 10); O’Connor v. Georgia Railroad Bank, 121 Ga. 88 (48 S. E. 716); Ragan v. Coley, 4 Ga. App. 421 (4, 5) (61 S. E. 862); Wright v. Brown, 7 Ga. App. 389 (66 S. E. 1034); Black v. Weaver, 7 Ga. App. 507 (3) (67 S. E. 389). In the case of Fulcher v. Felker, 28 Ga. 252, the headnote is as follows : “A sells to B a tract of land at full valuation, incumbered with a judgment lien, to satisfy which the land is sold by the sheriff, leaving a surplus, after satisfying the principal, interest, and cost of fi. fa. Upon a rule against the sheriff, and at the instance of A, held that B, the purchaser, and not A, was entitled to
We therefore think the court was right in dismissing the intervention and awarding the surplus fund to J. K. Burns.
Judgment affirmed.