65 Ga. 440 | Ga. | 1880
This was a money rule to distribute $17,000.00, in the hands of the sheriff, arising from the sale of the property of J. M. Fields. Elias E. Field claimed the same by virtue of two unforeclosed mortgages upon the property sold by the sheriff, and Willingham claimed the same on a junior ft. fa. vs. J. M. Field, to the amount necessary to satisfy his judgment. Upon an issue on said mortgages, the jury decided in favor of Willingham, and the court, on the motion of the mortgagee, granted a new trial, and Willingham excepts and says the court erred in granting the new trial; also, that the verdict of the jury was according to law and evidence, and should not be disturbed.
It seems that the identical lands covered by the mortgages which raised the money, were sold by a ft. fa. against J. M. Field, not subject to the mortgages, and that the mortgages had been the subject of litigation between J. M. Field and Lewis Tumlin and E. Field in Bartow superior court. Willingham contended before the court and jury that the mortgages could not claim the money for two reasons. 1. The same were still unforeclosed and the land was sold not affecting their lien, and, 2d., the mortgages were paid off, satisfied and discharged by a decree in Bartow superior court, and therefore could not claim the funds in preference to the Willingham ft. fa.
It appears that J. M. Field was the owner of a large estate, and was much involved in debt, and that Lewis. Tumlin was his security for a large amount, and that Field was otherwise indebted to Tumlin. He was also indebted to his brother, E. Field, and as trustee, the amount of the two mortgages mentioned.
In this state oi affairs, Tumlin and E. Field, the creditors, J. M. Field, the debtor, agreed that Tumlin and E. Field should buy in the property about to be sold at marshal’s sale, pay the fi. fa., hold and use the property or sell the same, pay all the claims, and then turn over to J. M. Field the balance, if any, and also a policy of insurance.
Tumlin and Field did buy the property, take charge of the same, of great value, sold the land, collected the insurance money and had in their possession, mostly in the possession of Tumlin, this large amount, when J. M. Field filed his bill for account and settlement of this trust, alleging many things, and among them, that the said trustees had secured this large estate and money enough to pay all the debts, claims, mortgages, and still had a large amount belonging to him, and prayed a decree of account.
The judge and the court on the trial of the case rendered the following verdict and decree :
“J. M. Field, vs. Lewis Tumlin and E. Field.
September Term, 1873. In Equity.
“We the jury find for the plaintiff $6,951.67 against Lewis Tumlin, said Tumlin settling with E. E. Field out of the land notes, if not already paid, and also declare the Summerlin fi. fa.. Field mortgage debts, and Solomon debt settled as far as j. M. Field is concerned.”
Upon which was entered the following decree, stating the case:
*443 “ Wherefore it is considered and decreed by the court that the complainant, J. M. Field, recover of the defendant, Lewis Tumlin, the sum of $6,951.76, for which execution may issue, and that the execution in favor of Harrison Summerlin, assigned to Wm. Solomon,’and by him to Lewis Tumlin and now controlled by him, be satisfied so far as J. M. Field is concerned, and that the fi. fa. of Harrison Summerlin against J. M. Field, assigned to Lewis Tumlin and Elias Field, be satisfied so far as J. M. is concerned, and the mortgage given to E. Field by J. M. Field, and the mortgage given by J. M. Field to Caroline E. Field, guardian, and controlled by E. Field, together with the several notes for which said two mortgages were given, be satisfied so far as J. M. Field is concerned, andithat defendant, Lewis Tumlin, pay the cost of this case.”
Lewis Tumlin made a motion for a new trial, which motion recites that the same was made on motion of counsel for Lewis Tumlin, and which motion was granted by the court and a new trial ordered. What effect did the grant of a new trial have on the decree as to the co-defendant Field, must depend upon the question whether the decree was several or joint, whether the new trial could be, as to Tumlin, and not affect the declared equity as to Field, his co-defendant. Field was satisfied with the decree. He neither joined Tumlin in his application for a new trial nor made one of his own; though rendered in 1873, he has remained inactive and quiescent ever since —both as to the decree and the enforcement of his mortgage liens, for they still remain unforeclosed. The bill required an account against both defendants as trustees, and the jury in their finding fixed the respective liabilities^ finding a money decree for over $6,000.00 in the hands of Tumlin, and that the debts mentioned should be satisfied, the two mortgages being owned by E. Field, and fixed the costs by final decree against Tumlin. This is equitable and proper. Each party being liable for his own management of a trust fund, and not for the misuser by a co-trustee. The' decree was a several one—E. Field not being affected by the money verdict against Tumlin, nor Tumlin injured by the satisfaction of the mort
It is well settled that where several are sued at law or in equity and a several decree or verdict is had, a new trial as to one will, not disturb the other. 59 Ga., 654 ; 49 Ga., 622 ; Randolph, Va., vol. 1, p. 421 ; 2 Bibb, 441 ; 6 Paige, 273 ; 7 Ib., 221; 11 Wend., 227 ; Daniel Ch. Prac., §§1604, 1628.
Judgment reversed.
