Barfield v. Covington , 103 Ga. 190 ( 1897 )

Fish, J.

1. The forthcoming bond given to the sheriff by Barfield as principal, and Owens as surety, was executed under section 5436 of the Civil Code, and the failure to deliver the property described in the bond, at the time and place of sale, was a breach thereof, for which the sheriff could recover of them the value of such property. They could not relieve themselves of their obligation to produce the property by subsequently applying it to the payment of rent due by Barfield to Owens. While Owens had a landlord’s lien for rent upon the crops grown upon the rented premises during the year 1894, superior to the,lien of the common-law judgment of Bullock, Bush & Co., yet, in order for him to have realized the benefit of such superior lien, under the facts of this case, it was necessary for him to have sued out a distress warrant against Barfield, placed it in the hands of the sheriff, and demanded that the proceeds of the sale of the crop be applied to the satisfaction of the lien for rent, in preference to the judgment lien. In such an administration of the property by the court, the rights of all parties interested therein could have been determined, according to the facts of the case. The suing out of the distress warrant by Owens and placing it in the hands of the sheriff, after the property had been applied to the payment of the rent, did not affect the liability of Barfield and Owens for the breach of the bond.

2. Nor was it a valid matter of defense that, after the forthcoming bond sued on had been given to the sheriff and before the day of sale, Mrs. Barfield interposed a claim to the corn mentioned in the bond, placed her claim bond in the hands of the sheriff, and had him to approve and accept the same. Defendants obligated themselves to deliver the corn to the shei’iff at the time and place of sale. Their failure to comply with tins obligation was a breach of the bond, for which the sheriff was entitled to recover. Aycock v. Austin, 87 Ga. 566.

Judgment affirmed.

All the Justices concurring.