Hidell v. Dwinell , 85 Ga. 452 ( 1890 )

Blandford, Justice.

This was a contest for money in the hands of the ' sheriff under a rule to distribute the same. Hidell claimed the same under an execution issued upon a judgment of foreclosure of a mortgage. The defendants in error claimed the same under a general judgment. It was insisted by counsel for the defendants in error that the property embraced in the mortgage, and which was sold as the property of Mr. Hidell under a general judgment in favor of Dwinell, was sold subject to the mortgage; that as the mortgage had been foreclosed, and execution had been issued on the judgment of foreclosure, it was optional with the plaintiff in the mortgage to have claimed the money arising from the sale if the property had been sold free from the incumbrance of the mortgage; but counsel insists that the plaintiff in the mortgage (the plaintiff in error) appeared at the sale and gave notice that the property would be sold subject to her mortgage, and that it was so sold; that on the day following the sale, plaintiff made an affidavit in accordance with the code to' require the purchaser to give bond and security for the forthcoming of the property to answer the demands of her mortgage, and that therefore the execution issued upon this foreclosure, at the instance of the plaintiff in error and in her favor, could not participate in this fund; that as to her, the equity of redemption which her husband had in the mortgaged premises was only sold. The court below so held, and instructed the jury to this effect: that if the contention of the defendants in error was proved by the facts, then they should find against the mortgage. To this ruling of the court Mrs. Hidell, the plaintiff in error, excepted, and says it was error. It is now contended before us that it was shown that after the affidavit of Mrs. Hidell had been made, the day after the sale, there was a contract entered into between Mrs. Hidell and Dwinell, the plaintiff in the common law judgment and the purchaser at the sale, to the following effect: that the Courier newspaper bought by Dwinell on the 6th instant at the sheriff’s sale might be retained by Hidell and used in the publication of the Courier until the first Tuesday in October following, without charge ; that at the expiration of the time stated. Hidell would deliver the property to Dwinell without charge for storage; and in consideration of the above, Hidell, as agent for his wife, would waive the necessity of a bond for the forthcoming of the property bought by Dwinell, and would claim the proceeds of the sale only upon the mortgage in favor of Mrs. Hidell, and allow the same to be disposed of by judgment of the court on a rule against the sheriff. And it is contended that this agreement gave to Mrs. Hidell the right to claim the money in the sheriff’s hands upon a mortgage ji. fa. to the same extent as if the property had been sold free from the encumbrance of her mortgage. We do not think this agreement operates in the way contended for by counsel for the plaintiff in error. It gives to Mrs. Hidell no better right to the proceeds of the sale of the mortgaged property than she had before the agreement was- entered into. This agreement does not in any way waive any right which she had to follow this property as subject to the lien of her mortgage. It is true that she had the right to claim the proceeds of the sale of the prop-' erty, if she desired to do so, before the court; and it ■was for the court to say, when she made such claim, whether her claim would be allowed or not, under the facts of the ease. Indeed, looking at the whole agreement, the latter part of it (where the parties agree that, during the interval between the time the agreement was entered into and the first Tuesday in October, if the parties could sell their respective interests in the ' Courier and material to any other person or persons, they would deliver the same to the purchaser .unincumbered, so that a perfect title could be transferred and delivery made as soon as the sale could be effected) shows clearly that at least Ilidell considered that the property was still encumbered by his wife’s mortgage. So we think the ruling of the court on this point was right; and under the evidence in the case, there remained nothing for the jury to do but to find against the claim of the plaintiff in error. And the judgment of the court below is Affirmed.