Crowder v. Dunbar , 1884 Ga. LEXIS 360 ( 1884 )

Blandeobd, Justice.

Crowder sold Marchman a tract of land for one thousand dollars cash, and took his two notes, one for one thou ■ sand dollars and one for six hundred and forty-four dollars, 'and gave Marchman his bond conditioned to make titles to the land when the purchase money, as secured by the two notes, was paid Crowder sold the one thousand dollar note to John W. Dunbar, and conveyed the land by deed to him. Marchman surrendered Crowder’s bond for titles to Dunbar, and Dunbar made to Marchman a bond conditioned to make titles to the land when Marchman paid the note for one thousand dollars, which Dundar held, and also the note of six hundred and forty-four dollars, which Crowder held for the purchase money of the land. Crowder and Dunbar having at the same time obtained judgments on their notes against Marchman, the land was levied on and brought fourteen hundred dollars; the money being in the sheriff’s hands, they, the plaintiffs, brought their rules severally against the sheriff, each claiming to be paid their respective claims. The two cases were consolidated and tried together, and the jury found that Dunbar’s judgment be first paid, and that the balance be paid to Crowder’s fi. fa A motion for hew trial was made by Crowder, which was overruled by the court, and Crowder excepted, and brings the case here for review.

The plaintiff in error requested the court lo charge the jury: “If you believe from the evidence that Crowder sold land to Marchman and gave him a bond for titles, and held two notes of Marchman for the purchase money; and if you believe that Dunbar took up one of the notes, and Crowder passed the title to Dunbar, with the understanding that the note he, Crowder, kept was to be paid; and if you believe that Dunbar, pursuant to such understanding, executed a bond for titles, in which it was provided that, when both'notes should be paid, a title would be made by Dunbar, then Dunbar and Crowder would each have a pro rata share of the fund, if their judgmen ts are of equal date.”

This request to charge the court was refused, and this forms the principal ground of error assigned in the record,— the only one Ave need consider. It is a general rule that, when a note is transferred, which is secured by mortgage or other security, it carries with it the securities, and the transferee would be entitled to have his debt paid- first out of the money raised on the security. 32 Ga., 228; 38 Id., 452. While this is the general rule, the parties may stipulate among themselves that the money raised from the security may be appropriated in a particular manner and different from that in which the law would appropriate the fund. And it is contended by the learned counsel for plaintiff in error, that in the case before us, it was stipulated between Crowder and Dunbar, at the time Crowder transferred to Dunbar Marchman’s note, and when he made him the deed to the land, that the note which Crowder held on Marchman for the purchase money should ibe equally protected with the note so transferred to Dunbar. If this is true, then Crowder would be entitled to share in the fund in the sheriff’s hands, raised from the sale of the land secured by the deed from Crowder to Dunbar and the bond for titles from Dunbar to Marchman, pro rata with Dunbar. 2 Jones on Mortgages, section 1700. The request prayed for, as before set out, should have been given in charge to the jury, if there was sufficient evidence to authorize it. The testimony of Crowder himself, in connection with other facts, was a sufficient foundation to have authorized the charge. This was the theory of plaintiff’s case, and this theory was not fairly submitted to the jury by the court below; indeed, it was not submitted at all; this is the only error we find in the charge. Let the judgment of the court below be reversed.