Opinion
December 3, 1936.
December 7, 1936.
Executions — Interpleader — Goods conveyed to claimant by judgment debtors — Goods purchased by claimant — Listing in separate schedules — Judgment n. o. v. for execution creditor.
1. Where, upon the trial of an interpleader proceeding, it was agreed that property which had been transferred to the claimant corporation by the judgment defendants and property that was subsequently purchased by the corporation should be divided into two separate classes and listed in different schedules, and the issue of title to the goods listed under each schedule was submitted to the jury and a general verdict was returned in favor of the claimant corporation, the execution creditors, as the record stood, were not entitled to a judgment n. o. v. covering the property in both schedules. [482]
Mortgages — Construction — Limitation of lien of mortgage or judgment on bond accompanying to real estate described — Execution on personal property.
2. Where a mortgage contained a provision that the lien of the mortgage or any judgment that might be entered by virtue of the terms of the bond accompanying the same should be restricted to the property described in the mortgage, which was real estate, the effect of such clause was to limit satisfaction of the mortgage and judgment on the bond accompanying to the real estate described and to exclude the seizure of any personal property for such purpose. [482-3]
Before KEPHART, C. J., SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES, JJ.
Appeal, No. 385, Jan. T., 1936, by defendants, from judgment of C. P. Potter Co., Dec. T., 1933, No. 113, in case of Devling Brothers, Inc. v. Bertha E. Horn et al., executors of Estate of William C. Horn, deceased. Judgment affirmed.
Interpleader proceedings. Before LEWIS, P. J.
The opinion of the Supreme Court states the facts.
Verdict and judgment for plaintiff (claimant). Execution creditors appealed. Error assigned, among others, was refusal of judgment n. o. v.
John P. Vallilee, of Schrier Vallilee, with him A. N. Crandall, for appellants.
G. Mason Owlett and C. H. Ashton, for appellee, were not heard.
Argued December 3, 1936.
An issue was awarded in the court below in an interpleader proceeding to determine the ownership of a stock of hardware. It appeared that the Devling Brothers, who were partners, organized a corporation and transferred part of the partnership assets, the stock of goods in their store, to the corporation, receiving in return certificates of stock. The partnership was not dissolved and continued to own the store building and other assets. Subsequently the plaintiff corporation, appellee, purchased goods from various concerns. During the trial it was agreed that the property which had been transferred to the corporation from the partnership and the property that was subsequently purchased by the corporation, should be divided into two separate classes and listed in schedules "A" and "B." Schedule "A" consisted of the property which had never belonged to the partnership and could not have been seized by an execution against it. The issue of title to both "A" and "B" was submitted to the jury and a general verdict was returned in favor of appellee. In this appeal appellants ask for a judgment n. o. v. covering the property in both schedules. This, of course, they are not entitled to and, as the record stands, we could not undertake to grant it.
There is another strong reason which precludes the relief sought. The judgment on which the execution issued was entered on a bond given in connection with a mortgage. The mortgage contained this provision: "It is understood that the lien of this mortgage or any judgment that may be entered by virtue of the terms of the bond accompanying the same, shall be restricted to the property above described." The property described was real estate, but appellants contend that they could acquire a lien on personal property by execution and levy notwithstanding this provision. The manifest purpose of the clause was to limit the satisfaction of the mortgage and judgment to the real estate described and exclude the seizure of any personal property for such purpose. We need not discuss the other assignments of error.
The judgment is affirmed.