Scott v. Ward

22 Ga. App. 680 | Ga. Ct. App. | 1918

'Jenkins, J.

(After stating the foregoing facts.) The effect of the agreement entered into between the plaintiff and the Byrom Corporation was to release the sheriff from any liability to the plaintiff for the balance due him under the judgment in the former money-rule proceeding, and also to relieve the Byrom Corporation from the necessity of paying to the sheriff that amount of the purchasé-price of the property purchased by--the said corporation, the plaintiff therein agreeing to adjust the remainder of his claim with the Byrom Corporation and to look to it for the payment thereof. The contention of counsel for plaintiff in error, that the contract introduced'in evidence can not be held to mean that plaintiff agreed to look to the Byrom Corporation for the balance of his lien, but that the sheriff was simply to hold the fund temporarily, pending an adjustment between plaintiff and said corporation, is not well founded, for the contract itself shows that the purchase-price of the property sold by the sheriff and bought in by the corporation had never been paid over to the sheriff, there were no funds in his hands, to be held by him, and the agreement released the corporation from paying the same over to the sheriff, in sc far as this plaintiff was concerned. If, under the terms of the agreement entered into between the parties, the Byrom Corporation had not been relieved from the necessity of paying the funds into the hands of the sheriff, and the funds had in fact been paid over, with the understanding that the sheriff was’ simply to hold them "subject to an adjustment to be made between the parties, then the authorities cited by counsel for plaintiff in error (Civil Code of 1910, § 5348; Strickland v. Smith, 53 Ga. 79; Smith v. Wade, 65 Ga. 753), to the effect that where money is in the hands of an officer he may pay it over to the plaintiff by whose process it was raised, unless other claimants deposit their claims with him, and that notice to retain, unaccompanied by a lien, is insufficient, would be apropos; but under the facts as they appear in the record in this case, the authorities cited are not in point.

In the case of Anderson v. Whitehead, 55 Ga. 277, 278, it was held that “Where creditor and debtor and another person who owes the debtor agree that the latter person shall be substituted for the debtor and the debtor be released . . . , the debt is extinguished as to the debtor, and the third person becomes debtor in his place.” While the defendant, Ward, sheriff, was not a signatory party to the contract in this ease, by the terms of the contract itself the Byrom Corporation was substituted for the sheriff as debtor, and this would of itself be a discharge of the sheriff from liability, whether such discharge was expressly mentioned or not (Ferst v. Bank of Waycross, 111 Ga. 229, 232, 36 S. E. 773); and that such was the intention of the parties is shown by the fact that in pursuance of the agreement one half of the amount adjudged to be due the plaintiff, under the money rule, was actually paid over by the Byrom Corporation and received from it by the plaintiff, and that the remaiiiing portion has never been collected from the Byrom Corporation by the sheriff. As was held in the case of Edenfield v. Canady, 60 Ga. 456, “The substitution of debtor for debtor is not infrequent, and there is a place for it in the law. The undertaking in such case is not collateral, but original, and performance may be enforced as between the new parties, no matter what equities may have existed. See also Brown v. Harris, 20 Ga. 403; Dever v. Akin, 40 Ga. 433.

The contention that the plaintiff is not bound by the contract, because it was entered into by his attorney without authority to make it, is without merit, since the plaintiff sets up in his petition that the contract was in fact made, and nowhere does he seek to repudiate it.

The foundation of a rule absolute is the contempt of the court in the failure of the sheriff to obey its order; and it being made to appear by the contract entered into between the parties in this case that the sheriff was not really liable, but had thereby been released and absolved from any duty or liability to the plaintiff under the order of the court, the court properly refused to make the rule absolute. Holcombe v. Dupree, 50 Ga. 335.

Judgment affirmed.

Wade, G. J., and Luhe, J., concur.