118 Ga. 114 | Ga. | 1903
Woodley brought an action of trover against the O’Neill Manufacturing Company, to recover two mules, alleging that each of them was worth $125, and that their hire was worth 50 cents per day each. The defendant filed an answer denying all the material allegations of the petition; and set up by special plea that it held a mortgage executed by Clark Brothers to it, embracing six mules, the two in controversy being among the number; that there was a lien upon these mules both under the law of this State and under that of Alabama, where it had taken possession of the two mules in satisfaction of the debt for which the mortgage was given, and it thereby became vested with the title to the mules; it being .alleged that at the time the defendant took possession the title to the mules was in Clark Brothers, who were in partnership with the plaintiff and were colluding together to defeat the payment of the debt due the defendant by Clark Brothers. At the trial the evidence on many of the material issues was conflicting, but there was evidence authorizing a finding that the mules were worth $100 each and 50 cents a day each for hire. There was also evidence which authorized a finding that prior to the execution of the mortgage by Clark Brothers to the defendant they had executed a mortgage to ■one Coker on the mules in controversy, and that plaintiff had become security for the debt of Clark Brothers to Coker, and at the time of becoming security there had been an agreement entered into between plaintiff, Coker, and Clark Brothers, that if plaintiff was compelled to pay the debt to Coker, he was to take a transfer of Coker’s mortgage and the mules would become the property of plaintiff. Coker agreed to transfer his mortgage, and Clark Brothers agreed that, upon the payment of the debt by plaintiff, title to the mules should vest in him. Plaintiff was compelled to pay the debt to Coker, and took a transfer of the mortgage, and ■Clark Brothers put the mules in possession of plaintiff. All this occurred subsequently to the date of the defendant’s mortgage. Plaintiff having carried the mules to Alabama, the defendant sent its debt secured by the mortgage to an attorney of that State for
There is nothing in any ruling made in this case which conflicts with the rulings in Mashburn v. Dannenberg, 117 Ga. 567. No question of hire was there involved. The property in dispute was not of such character that hire could be recovered for the same; and what was then said in reference to the measure of damages in trover -cases must be taken in the light of this fact.
We find no error of law which required the granting of a new trial, and the evidence authorized the verdict. When the arrangement was made between Coker, Clark Brothers, and the plaintiff, that upon payment of Coker’s debt the plaintiff should own the mules, the plaintiff became the owner of the mules, as against ■Clark Brothers, the moment he paid Coker’s debt; and Clark Brothers, recognizing him as the owner, delivered possession of the mules to him. If the arrangement between Coker and the plaintiff did not have the effect of subrogating plaintiff to Coker’s rights as mortgagee, but the effect of it was simply to destroy the lien of Coker’s mortgage, then the plaintiff, although he became the owner of the mules, took them subject to the defendant’s lien. Having only a lien, the defendant would not be authorized to take possession of the property from the plaintiff without proceeding to enforce his lien in the manner prescribed by law, and, as we understand it, it is not claimed that either under the law of Georgia or of Alabama
Judgment affirmed.