86 Ga. 457 | Ga. | 1890
Mary A. Bibb brought her rule against the sheriff of Bartow county for the distribution of funds in the hands of the sheriff arising from the sale of certain personalty of B. F. Bibb, under the levy of a fi. fa. in her favor, and of certain mortgage executions on the property. To this rule Moore, Marsh & Co., mortgage creditors, and Vance & Kirby, also mortgage creditors, of B. F. Bibb, were made parties. The fi. fa. of Mrs. Bibb was allowed to be paid, and the real contest is between the mortgage creditors mentioned. Vance & Kirby contested the right of Moore, Marsh & Co. to participate in the distribution.
Our code, §1949, declares: “As among themselves, creditors must so prosecute their own rights as not unnecessarily to jeopard the rights of others; hence, a creditor having a lien on two funds of the debtor equally accessible to him, will be compelled to pursue the one on which-other creditors have' no lien.” It is argued by counsel for the plaintiff in error that, under this section, Moore, Marsh & Co. should have been compelled by the court to relinquish their lien upon the money in the hands of the sheriff and in comff for distribution, and proceed against the land and notes and accounts which they had as collateral, and that the court therefore erred in sustaining the demurrer to this plea. "We do not think so, under the facts in this ease. The facts show, that Moore, Marsh & Co. had a defeasible deed to certain realty, and some notes and accounts as collateral. They had no judgment lien against the land. Nor does it appear that the deed which Bibb made to them to the land contained a power of sale authorizing'Moore, Marsh & Co. to sell the land for the purpose of paying their debt. Nor were the notes and accounts sued to judgment and that judgment levied, the property sold and the money brought into court. "We do not think that under these circumstances equity would compel Moore, Marsh & Co. to relinquish their lieii upon the money in the hands of the sheriff in court to be distributed, and compel them to proceed
6. The next error complained of is, that when the jury returned a verdict, “¥e, the jury, find on the issue in favor of Vance & Kirby,” the judge ordered the jury to retire and fiud what amount, if any, was due upon the mortgage of Moore, Marsh & Co.; whereupon the jury retired and brought in the following verdict: “We, the jury, find on mortgage in favor of Moore, Marsh & & Co., principal $2,678.22, interest $452.03, attorneys’ fees $267.82.” The court did right in sending the jury back to their room to find what was due upon Moore, Marsh & Co’s mortgage. That was the real issue which they were empanelled to try. Their first verdict did not Cover this issue, and it was the duty of the court to have the issue passed upon by them and to send them back to their room in order that this might be done.
Judgment affirmed.