Our Bank v. Corry

145 Ga. 385 | Ga. | 1916

Lumpkin, J.

(After stating the foregoing facts.)

1. The controlling point in the ease is this: Our Bank took two bills of sale from Corry to secure an indebtedness due by him. They described certain live stock, among which were “two black horse-mules four years old named Punch and Ed, of the value of $500.” The bank instituted an action of trover against Corry, to recover the property covered by these bills of sale. It also sued out bail process, and the sheriff seized “two black or bay horse-mules named Punch and Ed,” and also one other mule and a horse. Neither party having replevied the animals, an application was made to the court, and an order obtained to sell them as perishable property and expensive to keep; and they were sold accordingly. Later Our Bank obtained a money verdict and judgment in its action of trover, and in the judgment it was specified that it should be credited with the net proceeds of the mules seized by the sheriff and previously sold. Thus Our Bank has asserted title to Punch and Ed, has caused mules to be seized and sold as Punch and Ed, has taken a judgment declaring that the proceeds of this sale shall be credited on its recovery, and presumably has received such proceeds as being the proceeds of the sale of the aforesaid Punch and Ed. Our Bank would now disregard all of this, and declare that Punch and Ed were only aliases of “Dan and Battler,” two mules which had been included in the mortgage from Corry to the Bank of Siloam, sold under the foreclosure of that mortgage, and bought by the Bank of Siloam. It does not contend that there is any idem sonans in the names. The described ages of Punch and Ed do not correspond with those of Dan and Battler. Still it is insisted that there was an identity in fact, and that Dan and Battler are Punch and Ed masquerading under other names. Punch and Ed it was in Our Bank’s bills of sale. Punch and Ed it was in the seizure and sale, and the net proceeds of Punch and Ed went into Our Bank’s till. Mules have no patronymics to act as additional means of identification; but we think that Our Bank has established too firmly that its dealings involved Punch and Ed to now assert that the two mules sold were not Punch and Ed at all, but some other mules, and to subject Dan and Battler as being the real Punch and Ed, after Dan and Battler have been sold under the foreclosure of a mortgage given by the same debtor to another, and bought and resold to the claimant, whose purchase-money notes are outstanding, and whose good faith is not attacked.

2. If this were merely a contest as to priority between the mortgage of the Bank of Siloam and the bills of sale of Our Bank, the question of the proper attestation of the mortgage of the former bank for record would be important. But whether or not the officer who attested the mortgage was disqualified from doing so, as being a stockholder in the Bank of Siloam, this did not render the mortgage void, but would only affect the matter of record and notice; and from what has been said above it appears that Our Bank is not in position to make the case turn on the mere question whether a younger bill of sale should outrank an older mortgage not properly attested for record, given by the same debtor to two creditors to secure debts, and treating both as covering in part the same property.

3. Mrs. Corry held the two mules to which she laid claim under a purchase from the Bank of Siloam, after the latter had bought at the sheriff’s sale under the foreclosure of its mortgage on the two mules called Dan and Battler. It is true that she had not paid all of the purchase-money. But this did not prevent her from having such an interest as authorized her to file a claim. Wade v. Hamilton, 30 Ga. 450; Hurley v. Epps, 69 Ga. 611, 612; Rowland v. Gregg, 122 Ga. 819 (50 S. E. 949); Blalock v. Wells, 141 Ga. 623, 625 (81 S. E. 853).

The evidence as to the posting of the advertisement under the sale based on the mortgage foreclosure was not such as to require a verdict for the present plaintiff; certainly not as against the claimant.

From the foregoing discussion it follows that the judge did not err in directing a verdict in favor of the claimant.

Judgment affirmed.

All the Justices concur.