Thompson v. Harris , 1933 Ga. LEXIS 111 ( 1933 )

Bell, J.

The holder of a security deed to land sold the land and himself became the purchaser under a power of sale contained in the security deed. The holder of a mortgage on personal property belonging to the same debtor, who was insolvent, accepted the personal property in satisfaction of the mortgage debt. At the time of the latter transaction, the holder of the security deed had become the transferee of tax executions issued against the common debtor and constituting a prior lien upon both the land and the personalty. The transferee caused one of these executions to be levied upon the personal property; whereupon the mortgage creditor filed a suit in equity to enjoin the sale under the tax execution and to obtain an equitable apportionment of the taxes as between the real estate and the personal property, according to the respective valuations at which the different properties were assessed for taxation (see Brooks v. Matledge, 100 Ga. 367, 28 S. E. 119). At the hearing of the application for an interlocutory injunction, the evidence, though conflicting, authorized a finding that while the mortgage debt had been reduced by credits to about $30, the property delivered to the mortgagee as final payment was actually worth approximately $200, and that the difference between these amounts exceeded the total amount of the taxes.

In these circumstances, the trial judge did not err in refusing the interlocutory injunction. In equity the mortgage creditor as against the transferee of the tax execution was not entitled to have a satisfaction of the mortgage debt with property the value of which exceeded the indebtedness, and should not be granted an apportionment where the surplus value received by him was sufficient to pay the taxes. As among themselves,- creditors must so prosecute their own rights as not unnecessarily to jeopardize the rights of others. Civil Code (1910), § 3220; Moore v. Cofield, 10 Ga. App. 197 (73 S. E. 45). Judgment affirmed.

All the Justices concur.