First National Bank v. Burruss & Co.

Atkinson, J. On the 30th day of March, 1911, T. 0. Burruss & Company sold a certain bay mare to J. 'L. Park, and received from him a promissory note for the purchase-price, in which it was stipulated that the mare would remain the property of the vendors until the debt should be paid. The contract was duly recorded in the county of the residence of J. L. Park on the first day of April, 1911. On the 20th day of April, 1912, Burruss & Company recovered a judgment on the promissory note, and the execution issued thereon was levied by the constable. On February 28, 1912, J. L. Park and F. A. Park executed a promissory note payable to the First National Bank of Cornelia, Georgia, and as security for the debt the note provided that the bank should have a mortgage lien on the mare and other personal property. This was duly recorded on March 5, 1912. On November 11, 1912, the chattel mortgage was foreclosed and execution was issued thereon. The sheriff levied upon the mare and the other personal property, and caused it to be sold at sheriff’s sale in January, 1913. It brought its full value. The justice’s court fi. fa. in favor of Burruss & Company was placed in' the hands of the sheriff, and the proceeds from the sale of the mare were demanded to be paid thereon. J. L. Park was insolvent. The sheriff declined to pay over the money; whereupon Burruss & Company instituted a money-rule proceeding against the sheriff to require him to pay over the money on the fi. fa. The First National Bank of Cornelia intervened and claimed the fund upon the mortgage fi. fa. The judge, passing upon the law and facts by consent, awarded the fund to Burruss & Company, and the bank excepted. Held, that under the principle of Browder v. Blake, 135 Ga. 71 (68 S. E. 837), there was no error in awarding the money to Burruss & Company. Judgment affirmed. All the Justices concur.