Barnett v. McConnell , 101 Ga. 32 ( 1897 )

Cobb, J.

This was a contest between two creditors holding mortgages executed by the debtor on the same day on certain personal property. Barnett brought a rule against the sheriff, and claimed the money in his hands arising out of the sale of the property under the foreclosure of a mortgage, dated June 1, 1895, and recorded five days thereafter. Bass Brothers & Company were made a party to the rule, and claimed the money on an execution issued on the foreclosure of a mortgage dated June 1,1895, and recorded on the day of its execution. The evidence was conflicting as to which mortgage was first(recorded,%) and also as to whether Bass Brothers & Company, tiEiiTioIders of the mortgage first filed, at the time of receiving it, had notice of the existence of the mortgage given to Barnett. The trial judge, presiding without a jury, awarded the fund to Bass Brothers & Company ; and we can not say that he erred in so doing. An examination of the evidence discloses a state of facts where it is impossible for this court to tell what was the truth in regard to the two questions of fact that the judge passed upon; and his judgment, under the circumstances, in awarding the fund to the more diligent creditor, will not be disturbed.

Judgment affirmed.

All the Justices concurring.