Mayor and Council of Millen v. Clark , 193 Ga. 132 ( 1941 )

1. Exceptions to the overruling of a demurrer can not be made in a motion for new trial. Crew v. Hutcheson, 115 Ga. 511, 526 (42 S.E. 16).

2. Nor is an exception that the decree does not follow the verdict proper subject-matter for a motion for new trial. Loudon v. Coleman, 62 Ga. 146.

3. It being made to appear that the municipality was indebted to the owner of property against which assessments for paving had been made, under contract of lease of such property, and that the owner directed the city to apply rents to payment of assessments against this property, the subsequent crediting by the city of the rents to assessments made against other parcels of property belonging to the owner, although of older date, was unauthorized, and sale of the property under assessments so directed to be satisfied by application of rents, at which the city became purchaser, was void and could be assailed by the owner in equity.

4. The court did not err in overruling the motion for new trial.

No. 13867. NOVEMBER 12, 1941. The City of Millen had executions for paving assessments against certain property belonging to Mrs. N. S. Clark levied thereon, and at the sale became the purchaser for the amount of the executions. The city, under proper resolutions of its mayor and council, advertised the property for sale and Mrs. Clark instituted the present suit in the superior court, praying that it be enjoined from selling the property, and that the deed made to the city as purchaser at the aforesaid sale be delivered up and canceled, on the ground, among others, that the executions had been satisfied and paid by the application of certain rents due from the city to the plaintiff. The jury returned a verdict in favor of the plaintiff, and the defendant excepted to the overruling of its motion for new trial. We will not elaborate the first two head-notes.

It appears that the city rented a building for use as a city hall, in which the plaintiff owned an undivided interest, and that during the tenancy the plaintiff became the sole owner. There was evidence sufficient for the jury to have found that the plaintiff directed that the rents accruing on the property be applied in payment of taxes and paving assessments against the property in question, and that the city actually drew a voucher for the accumulated rents due to the plaintiff, but, instead of crediting the amount in satisfaction of the executions under which the property was sold (it being amply sufficient for that purpose), as directed, applied it to assessments made against other parcels of the plaintiff's property which were of older date. Under the Code, § 20-1006, "When a payment is made by a debtor to a creditor holding several demands against him, the debtor has the right to direct the claim to which it shall be appropriated." Under this provision, when the city sought to settle the amount it was due to the plaintiff for rent, and actually drew a voucher for that purpose, it should have applied the same in satisfaction of the executions against the property in question, in accordance with her directions, and had no authority to apply it to other claims, though of longer standing. It is only when the debtor fails to direct application of payments that the creditor can do so. Code, § 20-1006, supra. This being true, the executions under which the property was sold should be considered as having been paid, and the city had no authority to bring the property to sale thereunder. A sale of property under an execution which has been satisfied is held to be void, and is assailable in equity. Bell v. Chandler,23 Ga. 356 (2), 359; New England Mortgage Security Co. v.Robson, 79 Ga. 757 (4 S.E. 251); Adams v. Keeler,30 Ga. 86; Rish v. Ivey, 76 Ga. 738; Nalley v. McManus,135 Ga. 713 (2) (70 S.E. 255); 23 C. J. 749; 21 Am. Jur. 250. The charge of the court was adjusted to this view of the case, and there was no error in overruling the motion for new trial.

Judgment affirmed. All the Justices concur.