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Dowell et al. vs. Dickle & Company et al.

ered against the mortgagor and claimed a fund in the hands of the receiver realized from the accounts and choses in action. The chancellor

ordered this money paid to the judgments : Held, correct. The choses in action in the hands of the receiver were legal

assets, and as the mortgagee had obtained no decree on his bill, the common law judgments were entitled to the fund.

Equity. Receiver. Lien. Judgments. Before Judge

. BUCHANAN. Floyd Superior Court. January Term, 1875.

Reported in the decision.

Smith & BRANHAM; J. N. GLENN; D. R. MITCHELL, for plaintiffs in error.

WRIGHT & FEATHERSTON, for defendants.

WARNER, Chief Justice.

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This case came before the court below on a motion to distribute money in the hands of a receiver who had been appointed by the chancellor on a bill filed for that purpose to take charge of a stock of goods which had been mortgaged by Jones to Dowell, as also the books of accounts and choses in action of Jones. The bill was filed by Dowell, the mortgagee, against Jones, the mortgagor. The receiver was appointed on the 1st of January, 1874, and as it appears from his return, had in his hands, after deducting expenses, commissions, etc., the sum of $205 40 which had been collected by him as the proceeds of goods sold by Jones after the date of Dowell's mortgage, and which were embraced in it. The mortgage on the stock of goods is dated on the 17th day of April, 1873, and was foreclosed in January, 1874. The money in the hands of the receiver, was claimed by the plaintiffs in two fi. fas., one in favor of Dickle & Company vs. Jones, the other in favor of Wright and Featherston vs. Jones, issued on judgments obtained on the 6th of March, 1874. The court ordered the money to be paid to the two common law fi. fas. instead of to the mortgage fi

. fa., wherenpon Dowell excepted.

Dowell et al. vs. Dickle & Company et al..

There is no doubt that the money in the hands of the receiver was collected by him from persons who were indebted to Jones for goods purchased of him after the date of the mortgage, and which were embraced in it at the time of the date thereof, and there is no doubt but that the plaintiffs in the two common law judgments obtained the same, after the goods, notes and accounts of Jones had been placed in the hands of the receiver under the order of the chancellor. Neither party had any legal lien upon the money in the receiver's hands. The mortgagee had no legal lien upon the proceeds of the goods which had been sold by the mortgagor, after the date of his mortgage. The plaintiffs in the common law judgments against Jones, obtained no lieu on the choses in action then in the hands of the receiver under the order of the chancellor at the time their judgments were obtained. Who, then, is entitled to the money in the hands of the receiver, the plaintiff in the mortgage fi. fa. who filed the bill under which the receiver was appointed and the money brought into court, or the plaintiff's in the common law judgments? The solution of this question depends upon the fact whether the money in the hands of the receiver was legal or equitable assets. The notes and accounts due to Jones, for goods sold by him, were undoubted legal assets, and could have been reached in the hands of his debtors, by the legal process of garnishment, by his cred. itors. Did the fact that the notes and accounts due to Jones, were taken into the possession of a receiver under the order of the chancellor, and by him collected, change or alter the original nature and character of the assets, and convert the same into equitable assets ? We think not, and inasmuch as Dowell had not obtained any judgment or decree on his bill against Jones, the debtor, and the plaintiffs claiming the money had obtained judgments on their demands against Jones, there was no error in ordering the money in the receiver's hands to be paid to their executions according to the ruling of this court Robinson vs. The Bank of Darien, 18 Georgia Re

ports, 65.

Let the judgment of the court below be affirmed.

55 179 83 382

Barclay vs. The State of Georgia.

WILLIAM D. BARCLAY; plaintiff in error, vs. THE STATE

OF GEORGIA, defendant in error,

Where one is indicted for a misdemeanor under section 4600 of the Code,

the gist of the offense thereunder, being the sale or disposition of property mortgaged, so as to defeat the rights of the mortgagee, and the property de

scribed in the mortgage is “one bay mare mule :" Held, that parol evidence is inadmissible to show that there was a mistake in

the description, and that the mortgage was intended to cover a bay horse mule, though the indictment alleged the mistake.

Criminal law. Indictment. Evidence. Before Judge HALL. Monroe Superior Court. February Term, 1875.

Reported in the opinion.

HAMMOND & BERNER, by W. T. TRIPPE, for plaintiff in

error.

T. B. CABANISS, solicitor general, by PEEPLES & HOWELL, for the state.

JACKSON, Judge.

The defendant was indicted under section 4600 of the Cude, for having sold and disposed of a certain bay horse mule after having mortgaged the said mule to the mortgagee, with the intent to defraud the mortgagee. It was alleged in the indictment, that by mistake the mortgage described the animal as a bay mare mule. Evidence was admitted to show the mistake, and the defendant was convicted. We think the court erred in admitting the evidence, and that the conviction was illegal. In a civil case, this evidence may be admissible, but in a criminal case we hold it is not, where the instrument in writing is the basis of the prosecution.

The judgment is, therefore, reversed.

Whittle vs. Webster.

55 1801 56 11 56 21 66 176 67 613

JAMES J. WHITTLE, plaintiff in error, vs. JOSEPH E. WEB

STER, defendant in error.

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When a landlord rents a' store-house to a tenant for the purpose of selling

goods therein, in the absence of the tenant's knowledge to the contrary, the law will presume that it is in a condition suitable for the purpose for which it was rented by the tenant, and if it is not, and damage results to the tenant's goods in consequence of the defective condition of the rented premises, the landlord is liable therefor; and if after the premises have been rented, the same become unfit by reason of the roof of the house becoming leaky, or other similar cause, so as to render the house unsuited for the purpose for which it was rented, the landlord is bound, upon notice being give to him of the defect by the tenant, to make the necessary repairs within a reasonable time thereafter.

Landlord and tenant. Repairs. Before Judge JAMES Johnson. Muscogee Superior Court. May Term, 1875.

Reported in the decision.

D. H. BURTS; W. A. LITTLE; PEABODY & BRANNON, for plaintiff in error.

BLANDFORD & GARRARD, for defendant.

WARNER, Chief Justice.

This was an action brought by the plaintiff against the defendant to recover damages alleged to have been sustained to the plaintiff's goods in consequence of the leaky condition of a certain described store-house rented by the plaintiff from the defendant, in the city of Columbus.

On the trial of the case there was evidence introduced on both sides in relation to the damage done to the plaintiff's goods, and as to the condition of the store-house whilst the same was occupied by the plaintiff. The jury, under the charge of the court, found a verdict in favor of the defendant. The court charged the jury, amongst other things, in substance, as follows: “When one rents a lot and house thereon, he takes them for better or for worse, and if defendant rented a store-house to the plaintiff, and the house was in a certain

Whittle vs. Webster.

condition at the time of renting, the defendant was not bound by such renting to put other or more repairs thereon than were necessary to keep the house in the same condition it was when rented. If the house rented was subject to leakage from rain at the time rented, and being thus subject to leakage and the goods of the defendant were damaged from leakage to which it was subject at the time rented, the defendant is not liable for such damage to the plaintiff's gooils. It is the duty of the landlord 'to put such repairs on the rented premises as will keep them in the condition they were when rented, thus much and no more, and a landlord does not insure against leakage and damage therefrom to the tenant." To this charge of the court the plaintiff excepted.

In our judgment, this charge of the court, in view of the evidence in the record, was error. By the 2284th section of the Code it is declared that the landlord must keep the rented premises in repair, and is liable for all substantial improvements placed upon them by his consent. This section of the Code was construed by this court in Guthman vs. Castleberry, 48 Georgia Reports, 172. If a tenant should rent a dilapidated or leaky store-house, with full lenowledge of its actual condition, at a reduced price in consequence thereof, and puts his goods therein, and the same are damaged, he would not then have any legal or just cause of complaint against his landlord. But when a landlord rents a store-house to a tenant

a for the purpose of selling goods therein, in the absence of the tenant's knowledge to the contrary, the law will presume that it is in a condition suitable for the purpose for which it was rented by the tenant, and if it is not, and damage results to the tenant's goods in consequence of the defective condition of the rented premises, the landlord is liable therefor, and if after the premises have been renter), the same become unfit, by reason of the roof of the house becoming leaky, or other similar cause, so as to render the liouse unsuited for the purpose for which it was rented, the landlord is bound, upon notice being given to him of the defect by the tenant, to make the necessary repairs within a reasonable time thereafter, and

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