Clark & Cole v. Dobbins

Trippe, Judge.

When plaintiffs in error, as warehousemen and factors, received the cotton from Grant and made the advances on it, they had no notice of the claim of the landlord for rent, or of Brewer & Company, merchants, for fertilizers. The question is, did the two last creditors have a lien on the cotton which was superior to the right or claim of the factors. The court below held that they did, and the exception is to that decision.

Let it be noted that the claim of plaintiffs in error is not that of factors who have furnished provisions or fertilizers, but for advances made on cotton deposited with them. They are the bailees of the property on which the advance was made. In such a case the right of the factor is that of a purchaser to the extent of the advances made, and he has a special property in the thing or article on which he has advanced his money: Story on Bailment, sec. 93, (g.); Story on Agency, secs. 34, 111, 112, 134. He has also a right which he can assert, if his principal be dead, against the specialty creditors: Montague on Lien, 62; Russell on Factors and Brokers, 195. And in England it is available against a debt due the Crown: The King vs. Lee, 6 Price, 369, (2 E. Ex. R.) Section 1976 of the Code recognizes in terms the lien given by the .common law to factors, and they have special powers as to the sale and disposition of property consigned to them which do not attach to either the liens of landlords or of merchants supplying provisions or fertilizers: Code, sec. 2085.

This court has held, in Rose & Company vs. Gray, 40 Georgia, 156, and in Frazer vs. Jackson, 46 Georgia, 621, that a boria fide purchaser of property took it discharged of the unforeclosed statutory lien against a steamboat, or of the lien of a stone and marble cutter. Why should he not so take it divested -of -the lien of the landlord or the merchant, which was not foreclosed, and of which he had no notice ?

We think there was error in the decision giving priority to the liens of the landlord and merchant over the right of the factors who made the advances in this case. See, also, Wilson & Company vs. Walker, 46 Georgia, 319.

Judgment reversed.