Chapman v. McPherson

Atkinson, Justice.

1. Under the facts contained in the record, this is an equity case, within the jurisdiction of the Supreme Court.

2. So far as it applies, the former decision in this case (Chapman v. McPherson, 177 Ga. 471, 170 S. E. 481) is controlling as the law of the case. Under that decision, the rights of Chapman are in equity subject to the lien of a prior security to the estate of Isaac G. Haas, and “the rightful holder thereof” should be given priority.

3. The ease being one in equity, it is governed by equitable principles, whether or not the relief sought by Chapman is legal or equitable. Charleston & Western Carolina Railway Co. v. Hughes, 105 Ga. 1 (3) (30 S. E. 972, 70 Am. St. R. 17); Garbutt v. Mayo, 128 Ga. 269 (4) (57 S. E. 495, 13 L. R. A. (N. S.) 58); Montgomery v. Atlanta, 162 Ga. 534-550 (134 S. E. 152, 47 A. L. R. 233); Snell v. Spalding Foundry Co., 180 Ga. 582 (180 S. E. 218).

4. Whether or not the purported transfer of the security deed by the executors of tire Haas estate was effectual either in law or equity, it appears that they also .transferred the note secured by the deed, and as a result of such transfer the transferee acquired ah equitable title to the security. Code, § 14-1802: Simpson v. Ennis, 114 Ga. 202 (39 S. E. 853); Shumate v. McLendon, 120 Ga. 396 (10) (48 S. E. 10); Clark v. Howard, 122 Ga. 273 (50 S. E. 108).

No. 11740. July 10, 1937. Rehearing denied July 22, 1937.

5. The foreign will under which the executors were acting, though not attested according to the laws of Georgia, appeal's to have been executed and probated according to the laws of the State in which the testator resided, and a copy of the will and the probate thereof, together with the order admitting the same to record according to the laws of that State, having been duly certified and introduced in evidence, sufficiently showed authority of the executors to receive payment of the note from a junior lienholder and thereupon to transfer the note to such holder, the note being personalty. Code, § 113-613; Knight v. Wheedon, 104 Ga. 309 (30 S. E. 794).

6. When the transferee from the executors subsequently transferred the note to N. C. McPherson Sr., the latter became in equity entitled to the security to the same extent as did the original transferee Under the principle ruled in note 4 above.

7. Under the foregoing rulings. as applied to the competent evidence, the judge, trying the ease without a jury, was authorized to find in favor of McPherson, establishing- a first Zien upon the property, and denying priority to Chapman. The special assignments or error, so far as they are sufficient to raise any question for decision, do not show canse for a reversal.

Judgment affirmed.

All the Justices conow except Russell, G. J., who dissents. George Starr Peclc, for plaintiff in error. Morgan Belser and Frank A. Doughman, contra.