McCall v. Walter , 71 Ga. 287 ( 1883 )

Hall, Justice.

The mortgage from Davidson to Walter conveys to the latter, as security for his claim, “all that certain stock of goods, consisting of dry-goods, groceries, boots, shoes, hats, caps, hardware, notions, and all such other articles as are usually kept in a first-class country store, and all fixtures and utensils in said store belonging to the mortgagor.” When the mortgage was foreclosed and the property mortgaged was brought to sale under a fi.fa. upon the judgment of foreclosure, among other things thus sold were an iron safe, the show-cases, platform scales, the trucks, copying press, chandeliers, and a cheese case, which were in use in the store at the execution of the mortgage.

1. In a contest between creditors for the fund, the court held that these last-named articles were covered by the mortgage, and were properly sold under the fi. fan and on this decision error is assigned. Machinery not actually attached to the realty, and movable at pleasure, is not, in the strict sense of that term, a fixture. Code, §2219. Anything detached from the realty becomes personalty instantly on being so detached, and may be the subject matter of larceny, even by the person so detaching it. Ib., §2220. A tenant cannot remove permanent fixtures, Ib., §2281. The distinction between permanent and movable fixtures is here recognized, and this is no departure from, or change in, the common law. Thus, chattels real are considered as personal property in every respect, if not so annexed and necessarily attached to the freehold as to go along with it in the same path of alienation. “ In order to make a thing part of the realty by merely annexing, it is necessary that both the thing and the soil to which it is attached should belong to the same owner.” Herman on Chattel Mort., §9. £‘ Movable fixtures are so completely considered the personal property of the tenant that, when not exempt, they may be stripped from the house and sold on process against him as goods and chattels. Among other instances given of such movable fixtures, are a bark-mill, a cider-mill and press, a post wind-mill, coffee-mills, gas fixtures, chandeliers, side brackets, iron safes, cupboards, shelves, and quite a number of other like articles, are covered by the description of utensils of the trade, and a portion by fixtures and utensils.’ ” Ib., §10. The mortgagor in this case was occupying rented premises, and in this house the goods mortgaged were located, and were so described. Personalty, by our Code, §2237, includes “ all such property as is movable in its nature; in fact, everything having a value inherent in itself, or the representative of value, and not included in the definition of realty.” If these positions are sound, it follows that the decision of the court below on this question was correct.

2. The mortgagor covenanted in and by his deed with the mortgagee that, in the event of the foreclosure of the mortgage for the debt it was given to secure, or any part thereof, or of suit upon the notes, or either of them, embraced therein, he would pay all attorneys’ fees and commissions, not less than ten per cent on the amount for which such foreclosure might be had, and all costs and expenses incurred by reason of such foreclosure or suit, and that such fees, costs and expenses should he considered as part of the debt for which the mortgage was given, and he as amply secured thereby as- the debt thereinbefore set forth. Under this covenant- the judge awarded the plaintiff’s attorney, as fees on the foreclosure, out of the money brought into court by sale under the mortgage fi. fa., ten per cent on the amount of the notes the mortgage was made to secure; and this allowance is also assigned as error. The foreclosure of the mortgag’e was for the principal and interest of the notes, together with the- sum of one hundred and sixty-five dollars and thirty-nine cents for attorney’s fees due on the foreclosure of the same. By the terms, of this contract, the fees were as much a part of the debt secured as were the notes themselves, so that the judgment of foreclosure and the execution issuing thereon was only for “ the amount of principal and interest due on the mortgage,” and was in strict accordance with the law prescribing how foreclosures on mortgages of personalty should be made. Code, §3971. Rodgers vs. Bullard, 49 Ga., 604, relied upon by counsel for plaintiff in error, is not applicable to this case, because it formed a part of the contract for a factor’s lien, which, by the terms of the statute authorizing it, was confined to “provisions and commercial manures.” The law applicable to the present case contains no such restriction.

3. It is next objected that the allowance of twenty dollars as fees to the counsel of the sheriff was unauthorized. This allowance does not seem to have been objected to at the hearing, but to have been acquiesced in; there is therefore no foundation for the error alleged in the bill of exceptions upon the question. Besides, the only party to the rule whose interest was affected, the plaintiff in the mortgage fi.fa., makes no complaint. After paying court cost, discharging the lien of his attorney, and the expenses of the sale, there was not enough left to satisfy his claim, which, by the judgment upon the rule against the sheriff, was to be first paid. But apart from these considerations, we are inclined to the opinion that the sheriff, under the circumstances of this case, was entitled to counsel at the expense of the parties litigant. The rule was not brought to enforce the performance of an official duty which he had omitted; he was not in default, was merely a stakeholder ; the sole purpose of the proceeding was to settle the claims of the contending parties to priority of payment out of the fund in his hands, which he was required to hold up until this question could be settled by the judgment of the court. He is in the condition of a party who is required to file a bill, calling on contesting claimants to interplead; he is a trustee quoad hoo, and, like other trustees is entitled to counsel. Code, §2543 and cases there cited. Of course he must act in the utmost good faith, to entitle him to this assistance.

4. We notice in this, as in very many cases that come before this court that the bill of exceptions is corrected in' important particulars by notes appended to the writ of error. This practice is directly in the face of the law providing how omissions shall be supplied and incorrect statements in bills of exceptions shall be rectified. Code, §4257. Such corrections should appear in the bill of exceptions and nowhere else. If they appear elsewhere, they will not be noticed by this court» and will be treated as no part of the bill m exceptions. The practice may lead to unauthorized tampering with the record by others; it is loose, to say the least of it, and may, as we have intimated, be unsafe. It is true that in Wing vs. Tompkins, 60 Ga., 447. Warner, C. J., delivering the opinion of the court, said: “ The judge may sign and certify a bill of exceptions with an explanatory note thereto, but he is not compelled to do so when it does not state the truth and the whole truth as to all the material facts which occurred on the trial of the case.” But he adds: “The better practice is to require that the bill of exceptions should state all the material facts correctly before the judge certifies to the truth of the same, and then there will be no necessity for any explanation.” See, to similar effect, Clayton & Webb vs. May, 68 Ga., 27; 59 Ib., 235; 67 Ib., 764, 769.

We insist upon this better practice; and in all cases hereafter certified, shall hold parties to a strict compliance with the requirements of the Code in this respect.

Judgment affirmed.