Simpson v. Robert , 35 Ga. 180 ( 1866 )

Lumpkin, C. J.

This case originated in this wise: Tillman J. Simpson was arrested for simple larceny, in Lee county, and committed to Dougherty county jail, on account of the insufficiency of Lee county jail. Jordan Williford became his bail, and for this purpose entered into a recognizance to the Sheriff of the county that he wonld appear at the semi-annual session of the County Court, to be held on the 4-th Monday in July, 1866, and from Term to Term, to abide by whatever was adjudged agaiust him,"until discharged by the Court.

To induce Williford to become his bail, he executed a mortgage to Williford on his growing crop. This instrument was transferred to Roberts and wife. Mrs. Simpson filed a bill of injunction to stop the parties from any interference with her property under this contract. Roberts and wife filed a cross bill, praying the appointment of a receiver to take charge of the property until the litigation should be settled, and it is to this action of the Court that exceptions are taken.

It is insisted that the foundation of this proceeding is illegal and void, and that consequently the whole superstructure erected upon it must fall to the ground. It is, contended that the bail bond is void for several reasons: 1st, That the Sheriff, as such, had no right to take it, the obligor being in the custody of the law, where he had been confined by the proper authority. 2. The offence charged was simple larceny, the committing magistrate might, if he thought proper, direct him to be kept in jail for safe-keeping, until he could give bail. We see no objection to such a proceeding. 3. Again, it is said, that the bond imposes a condition not required by law, and therefore it is void. We do not appreciate this objection. He is required to appear from Term to Term till discharged by the Court from the offence. Wherein can it be said to be more onerous than if he was bound to appear at the next Term and not to depart the Court until authorized to do so ?

There is a little confusion in the wording of the bond, arising from the fact that the prisoner was committed to the jail in Dougherty county, owing to the insufficiency of the jail in Lee county, and the word “ said” grammatically applies to Dougherty instead of Lee county. But this is explained by the facts of the case, and the context. — Code, See. 6, Par. 11.

It is alleged that the mortgage lien, given by Simpson to Williford, is void, and could vest no title in the latter which he could transfer to Roberts and wife; and this because it is contrary to public policy, to allow a party to substitute a property security to enable him to escape an offence. We are not prepared to sustain this doctrine. That a principal should, in case of default, not indemnify his bail against the effects of his forfeiture or failure to attend and answer for the crime, has never been doubted by any body, and no authority is offered to support the position.

But, it is said, admitting both the bail bond and the lien to be good, the latter does not authorize Roberts and wife to take possession of the crop and deprive the family of Simpson from enjoying it. We look upon the instrument made by Williford to Roberts and wife, as a mortgage merely. It is denominated a lien twice upon the face of the instrument.

While Roberts and wife had no right to appropriate the crop and other property to themselves, they had the right to have it protected, and lienee the appointment of a Receiver for this purpose was proper. But have not Mrs. Simpson and children rights secured to them bylaw, and of which no lien given by her husband can divest them? We think so, clearly, and in this way she can secure all the benefits that are sought to be accomplished by this litigation; and while we shall affirm the judgment of the'Chancellor appointing a Receiver, we shall instruct him, by a decree in Chambers, to be granted at once, to direct his Receiver to appropriate so much and such parts of this property to the wife and children .of this indigent man as is allowed by law for this purpose. — Code, Sections 2013 and 2020. The husband cannot by an encumbrance of any kind defeat his wife’s claims.

The judgment affirmed, with instructions.