Huie v. Loud , 38 Ga. 191 ( 1868 )

Warner, J.

The questions of law, and the facts involved in this case, were, by agreement, submitted to the Chancellor in the Court below, who, upon consideration of the same, directed the jury to sign a decree perpetually enjoining Huie, the judgment creditor, from collecting his fi. fa. out of the property claimed by Mrs. Loud. This judgment of the Court is assigned for error here. The facts in the case, as presented by the record, are in substance as follows: Mangum purchased of Waldrop a tract- of land on credit, giving his note for the purchase money, taking Waldrop’s bond for titles, went into the possession of the same, and made valuable improvements thereon. Afterwards, Mrs. Loud, a married woman, purchased the property from Mangum, as her separate estate, and paid the amount of the original purchase money due from Mangum to Waldrop. Whereupon, Waldrop executed and delivered a deed to the land to Mangum, and Mangum executed a deed conveying the land to Mrs Loud, receiving from her, as the consideration therefor, the sum of thirty-one hundred dollars in Confederate money. Subsequently, the land was levied on to satisfy a judgment obtained against Mangum in favor of Huie, and was advertised for sale as the property of Mangum. Mrs. Loud filed her bill enjoining the sale, and prayed a perpetual injunction against the sale of the property under Huie’s judgment and ji.fa.

- The question in the case is, whether Mangum had such an interest in the land and improvements thereon as was subject to levy and sale in favor of his judgment creditors ? In our judgment, after the payment of the original purchase money, with interest due thereon up to the time of such payment, by Mrs. -Loud, in discharge of the Waldrop debt, she acquired all the rights which Waldrop had in the land, and no more, as against Mangum’s judgment creditors. If the land and improvements put thereon by Mangum was worth more than the amount of the Waldrop debt paid by Mrs. Loud, such excess of value of the property was subject to the payment of the judgments obtained against Mangum prior to the sale of the property by Mangum to Mrs. Loud.

In view of th.e facts of this case, it is our opinion and judgment, that the Court below should have ordered and decreed a sale of the property, and that out of the proceeds of such sale, Mrs. Loud he first paid the amount of the original purchase money to which Waldrop would have been entitled under his contract, with interest thereon up to the time of sale, and that the balance of the proceeds of the sale of the land be paid to the judgment creditors of Mangum, according to their legal priority, in existence anterior to Mrs. Loud’s purchase of the iand from Mangum.

Let the judgment of the Court below be reversed.