McDuffie Oil & Fertilizer Co. v. Sims , 31 Ga. App. 261 ( 1923 )

Bell, J.

Where two executions are held by different parties against a common debtor, and where property of the debtor is sold under the junior execution, the sheriff may pay the proceeds over to the plaintiff by whose process it was raised, unless the holder of the senior execution deposit his lien with the sheriff, and thus claim the fund. Where the senior lienholder fails to do so, but passively permits the fund to be paid over to the holder of the junior lien, who receives the same without fraud or actual knowledge of the prior claim, the senior lienholder cannot recover the fund from the junior lienholder. See Civil Code (1910), §5348, and cf. Harris v. Grant, 96 Ga. 211 (2) (23 S. E. 390); DeVaughn v. Harris, 103 Ga. 102 (29 S. E. 613); Todd v. Hurst Supply Co., 17 Ga. App. 98 (5) (86 S. E. 255); 23 C. J. 505. Whether, with actual knowledge of the prior lien by the junior lienholder, or fraud on his part by which the senior lienholder was prevented from depositing his lien, or otherwise injured, the same rule would be applicable, it is unnecessary to decide in the instant case, in which the petition is without an allegation of such knowledge or of fraud. The general demurrer was properly sustained.

Judgment affirmed.

Jenldns, P. J., and Stephens, J., concur.