Satterfield, sheriff, vs. Boyd, assignee. On February 2d, 1886, the plaintiff's attorneys receipted on the fi. fa. to the defendant for $1,264.70, in full of the balance, principal and interest, on this fi. fa. Sometime in April, after this receipt was signed in February, it was discovered that $109.44 was still due on the fi. fa. Whereupon the defendant in fi. fa. gave his note, with Weir Boyd as security, for the balance due on the fi. fa., to wit, $109.44, and the execution for that amount was transferred by the plaintiff's attorneys to Weir Boyd. At the October term, 1887, by an order of the court this mistake was corrected, and it was ordered that instead of being a full and final discharge of the execution, the receipt should be a full discharge, except as to the amount of $109.44. It further appears from the record that at the time the receipt was given, on the 2d of February, for the payment of the execution in full, the defendant in fi. fa. gave two promissory notes for $100 each to the plaintiff's attorneys, with Weir Body as security, which notes are included in the $1,264.70 mentioned in that receipt. On the same day that this execution was transferred to Boyd by the plaintiff's attorneys, he entered into a written agreement with the defendant in fi. fa., whereby Parker, the defendant in fi. fa., consented and agreed that Boyd might enforce the execution against him by levy and sale to the extent of $309.44, the consideration of the agreement being the signing by Boyd, as security, of the two promissory notes for $100 each, and the promissory note for $109.44, the last being the amount of the mistake in the final receipt of February 2d, 1886. This agreement was attested by one of Sears' attorneys. Prior to this agreement made between Parker, the defendant in fi. fa., and Boyd, Hall and Head purchased other judgments and executions against Parker younger than the judgment and execution of Sears against Parker. The Satterfield, sheriff, vs. Boyd, assignee. sheriff, after the judgment was reopened, and at the same term of the court, had on hand funds which he had raised from the sale of certain property of Parker. Boyd claimed that he was entitled to this fund on account of the transfer of Sears' execution to him, and the agreement made by Parker, the defendant in fi. fa. Hall and Heard contested this, and insisted that they were entitled to it under other judgments and executions. A rule was brought by Boyd against the sheriff, and submitted to the court without the intervention of a jury. The court decided that Boyd was entitled to be paid the entire amount claimed by him before Hall and Head could share in the fund in the sheriff's hands. To this judgment of the court, the sheriff and Hall and Head excepted, and assigned the same as error. We think the court erred in awarding the full amount to Boyd, under the Sears fi. fa. It appears from the record that the Sears fi. fa. was fully paid off and discharged by the receipt signed by the plaintiff's attorneys, February 2d, 1886, with the exception of $109.44, the amount of the mistake made by the parties in the calculation. It was therefore only binding on the defendant in fi. fa. to this amount. Boyd had stood Parker's security on the two $100 notes at the date this receipt was entered on the fi. fa. He took no transfer then, nor was the subject mentioned between him and the plaintiff's attorneys at that time. He seemed to trust to the good faith and solvency of Parker for the payment of the two $100 promissory notes. It was not until after the mistake of $109.44 was discovered, and when Boyd stood Parker's security on this last amount, that the transfer of Sears' execution was made to Boyd; and it was only made then to the ȧmonnt of the mistake, $109.44. This was the amount for which the execution was transferred to him, and this the record The Chattanooga Stove Company vs. Adams. shows was the only amount due on the execution. When the court ordered the final receipt to be corrected, it was corrected only as to the amount of $109.44. We think, therefore, that this was the only amount that Boyd was entitled to out of the funds in the sheriff's. hands. The agreement made between Parker, the defendant in fi. fa., and Boyd, that Boyd might enforce this execution against Parker, not only for the $109.44 but for the $200, was void so far as other judgment creditors of Parker were concerned. The plaintiffs had not transferred the execution to Boyd for this amount, and the defendant had no authority in law to do so. Nor did the fact that the attorney for Sears attested the agreement between Boyd and Parker give validity to that agreement, nor make it a transfer of the execution. We hold, therefore, that Boyd was only entitled to be paid the $109.44 and interest thereon out of the funds. in the hands of the sheriff, and that the balance of the fund should be paid over to the other fi. fas. in the sheriff's hands. Judgment reversed. 81 319 81 THE CHATTANOOGA STOVE COMPANY vs. ADAMS. Though a deed of assignment may be void for want of a proper affidavit as to the list of creditors, etc., still, if the assignee accept the trust, go into possession of the goods conveyed, sell them, some before and some after the assignor's death, and apply the proceeds to the debts mentioned in the assignment, all in good faith and without fraud, such assignee cannot be charged as an executor de son tort of the assignor. June 1, 1888. Assignments. Fraud. Executor de son tort. Before Judge JOHN T. CLARKE. Clay superior court. September term, 1887. 105 The Chattanooga Stove Company vs. Adams. The Chattanooga Stove Company sued D. C. Adams, as executor de son tort of C. L. Laney, on a promissory note given the plaintiff by Laney. The defendant pleaded the general issue; also other matters of defence which will sufficiently appear in the statement of the evidence introduced on the trial, which was as follows: The plaintiff introduced the note, dated September 20, 1885, due December 15, 1885, for $159.44; also a deed of assignment made by C. L. Laney to D. C. Adams; also inventory and schedule of creditors of Laney, with amounts due each and their places of residence; also inventory of stock of Laney; also amount of accounts due him; also his affidavit; all the last named papers being attached to the deed of assignment, which may be briefly stated as follows: It recites that Laney is in feeble health and unable to carry on business and properly attend to it, and is indebted to a large number of persons in divers sums, the names of such persons, together with the respective amounts due each and their places of residence, so far as known, being at the time and before execution of the deed attached thereto and made a part thereof; Laney being unable to pay the whole of the debts. Therefore, for the purpose of winding up his business and protecting all his creditors, Laney sold, assigned, etc., to Adams all his stock of goods in a certain store-house, and all fixtures therein; also all evidences of debt due Laney, including deeds to secure debts, notes and mortgages, accounts and books of accounts, money, insurance policies, and all other property, real and personal, due and owing to Laney; a full and complete inventory of such property being attached as a part of the deed before its execution; Adams to hold the same upon the trusts that he shall, as well and as soon as the same can be The Chattanooga Stove Company vs. Adams. done so as to protect the rights of creditors, make sale at public or private sale as to him shall seem best, etc., applying the whole proceeds, first, to all costs, including attorneys' fees; next to charges and expenses incurred in the execution of the trust; next to taxes; next to note and mortgage to D. C. Adams, covering stock of goods assigned, for $1,000, dated July 16, 1885, due January 1, 1886; next to note and mortgage for $3,000 on same stock, dated July 16th, 1885, due January 1st, 1886, payable to D. C. Adams and transferred to Mrs. Rosa L. Laney; next to note and mortgage on same stock for $383.92, dated October 1, 1885, and due November 1, 1885, payable to Lucy Adams; next to note and mortgage, covering property assigned, payable to Z. W. Laney, for $2,151.50, dated October 9, 1885, due November 1, 1885; then to the other debts of Laney generally, pro rata, etc.; Adams covenanting that he would faithfully discharge the trust, and would, at all times, upon request of Laney, render to the creditors an account, etc. Attached to the deed is an inventory and schedule of creditors of Laney, with amount due each and their places of residence. Also an inventory of stock, taken October 12, 1885, the deed being dated October 26, 1885, footing $5,152.50. Also an inventory of accounts due Laney, October 20, 1885, with memoranda of certain credits at the bottom of the list; the last six names in the list of accounts and the memoranda of credits being in the handwriting of Arthur Hood, attorney at law, who drew the affidavit annexed, which is as follows: "GEORGIA,-Randolph county. "In person before me H. O. Beall, clerk of superior court in and for Randolph county, came C. L. Laney, who on oath says that the foregoing inventory and schedule attached to deed of assignment of all in. debtedness of C. L. Laney and names of creditors, together with amounts due and places of residence of creditors as therein set out, so v 81-21 |