79 Ga. 703 | Ga. | 1888
It appears from the record in this case that J. R. Duke, on December 4th, 1888, purchased a mule from Swann, Stewart & Company, giving his promissory note, payable on the 1st of November thereafter, for the purchase money of said mule; and in the same writing giving a mortgage to the vendors on said mule to secure the purchase money thereof, waiving homestead, etc. Upon maturity of the note, Duke failed to pay part of the purchase money for the mule, and Swann, Stewart & Company foreclosed their mortgage, and had an execution issued thereon and levied on the mule, which was sold by the constable under said execution in November, 1884. It appears also that, in October, 1882, Rasin had obtained a judgment against Duke, and upon the date of the sale of the mule, placed his execution in the hands of the constable with directions not to pay to Swann, Stewart & Company the money arising from the sale of the mule, but to pay it upon his fi.fa., which was over a year older than the execution of Swann, Stewart & Company. A rule was brought against the constable to determine which one of these fi. fas. was entitled to the money, the older fi.fa. of Rasin, or the mort
The only question in this case is, whether the court below erred in affirming the ruling of the magistrate awarding the money to the purchase money mortgage of Swann, Stewart & Company. The purchase of the mule by Duke, and the giving of the mortgage to secure the purchase money to Swann, Stewart & Company, were one and the same transaction; indeed, the note and mortgage are embraced in the same writing. The presumption is, that Swann, Stewart & Company would not have sold Duke the mule unless he had given this mortgage to secure the purchase money. When Duke, therefore, got possession of the mule, he took it-subject to this charge upon the property. For aught that appears in the record, Swann, Stewart & Company credited him exclusively upon the faith of the property. They sold him the mule on condition that it was to stand as a security for the purchase money. All the right that Duke got to the mule was such an interest therein as was consistent with the liability of the mule to be sold for the payment of the purchase money; and this right, subject to the payment of the purchase money, was, in our opinion, all that the judgment of Rasin could bind. It could only bind the interest or right of Duke after the purchase money was paid. We hold, therefore, that the court below committed no error in
Judgment affirmed.
