Opinion
35968.
DECIDED FEBRUARY 17, 1956. REHEARING DENIED MARCH 7, 1956.
Money rule. Before Judge Fort. Muscogee Superior Court. October 3, 1955.
John G. Cozart, for plaintiff in error.
Dan S. Beeland, contra.
Under the facts and circumstances of this case, a money rule under Code § 24-211, and not an affidavit and bond under Code § 67-805, was the proper procedure for the movant to follow in claiming the proceeds of a judicial sale in the hands of the sheriff; therefore, the court did not err in overruling a claimant's motion to discharge the rule.
DECIDED FEBRUARY 17, 1956 — REHEARING DENIED MARCH 7, 1956.
J. M. Hargett brought a money rule against E. F. Howell, Sheriff of Muscogee County. The petition alleged in substance: that on September 6, 1955, the sheriff, in his official capacity, collected $2,000 on a certain mortgage fi. fa. in favor of Carl J. Stanton and against Otis R. Rigsby; that on the same day the petitioner foreclosed his bill of sale to secure debt as a mortgage and placed the same in the hands of the levying officer, said sheriff, prior to the sale and at the same time notified the sheriff that he, Hargett, was claiming the proceeds of the sale; that on the same date the sheriff was notified of the demand of the petitioner for said money; that petitioner has information and belief that Carl J. Stanton is also claiming the $2,000 which is the proceeds of said sale; that petitioner's foreclosure is predicated on a bill of sale to secure debt given by Otis R. Rigsby to petitioner which was a lien on a certain stock of goods which, at the time of the execution of such instrument, was located at 1171 Talbotton Road, Columbus, Georgia, in a store known as "Your Q. S. S. Store", and which was at that time pointed out by the parties to the bill of sale; that petitioner's bill of sale provided for the lien to attach to all replacements and additions to such stock; that Rigsby, without the knowledge or consent of petitioner, mixed and mingled the stock of goods with another stock of goods said to be the subject matter of the mortgage of Carl J. Stanton; that the mixing of the goods was such that there was a confusion of goods and it became impossible to identify the one from the other; that 75% of the stock of goods sold by the sheriff as hereinbefore set forth was subject to the lien of the petitioner and was covered by the bill of sale held by him which was foreclosed as a mortgage, and placed in the hands of the levying officer prior to sale; that petitioner asks that the distribution of the proceeds of said sale be made on equitable principles as provided by law.
In his answer on the rule nisi the sheriff merely asked the court's direction as to the disposition of the money.
After proper notice Carl J. Stanton, Jr., filed his claim and alleged that O. R. Rigsby had executed to him a bill of sale to secure debt on the stock, goods and merchandise located in a grocery store located at 1401 Warm Springs Road in Columbus; that he had foreclosed on said property and that the proceeds held by the sheriff were received in the sale of such property and that he, claimant, was entitled to the entire sum.
Stanton also moved the court to discharge the rule because (1) it appeared that the property sold by the sheriff was not covered by the petitioner's bill of sale, and (2) that the petitioner should have proceeded under Code § 67-805 by filing an affidavit and bond and not under Code § 67-118 and by money rule. The court overruled this motion and Stanton excepts.
Assuming that such a motion was proper, the court did not err in overruling it. As to the procedure under Code § 67-805, the court said, in Barkley v. May, 3 Ga. App. 101, 103 (2) ( 59 S.E. 440); "It was designed for those cases where a creditor of the mortgagor might desire to contest the validity and fairness of the mortgage, and not to settle the priority of conflicting liens." The petitioner here is not contesting the validity and fairness of Stanton's bill of sale to secure debt. He contends that certain of the property sold under Stanton's process was not covered by Stanton's lien, or, that if Stanton did have a lien on all the property by virtue of his bill of sale, such lien was junior to his own lien as to 75% of the property.
Stanton's bill of sale was dated April 25, 1955, and provided: "It is understood and agreed that the lien of this bill of sale to secure debt shall detach as to any and all goods, wares and merchandise sold in the usual course of business and shall immediately attach to all goods, wares and merchandise purchased or acquired for replacement of merchandise sold or added to said stock."
Hargett's bill of sale was dated October 29, 1954, and was recorded November 2, 1954. It provided: "The lien created by this bill of sale shall be released as the stock is sold at retail; and the lien shall be assess and attach to all replacements and additions to said stock."
When Rigsby moved the goods and merchandise covered by Hargett's lien from his store on Talbotton Road and combined them with the goods and merchandise covered by Stanton's lien at the store on Warm Springs Road, such did not constitute a sale at retail as would release such goods from Hargett's lien. Assuming but not deciding that when the goods and merchandise were moved into the Warm Springs Road store Stanton's lien attached thereto, such lien was junior to Hargett's prior recorded lien.
The plaintiff in error, citing Pasley v. Beland, 111 Ga. 828 ( 36 S.E. 296), Crawford County Bank v. Britt Hightower Co., 17 Ga. App. 804 ( 88 S.E. 691) and Brown v. Smith, 50 Ga. App. 332 ( 178 S.E. 180), contends that the proper procedure the plaintiff should have followed was not as set out in Code § 67-118 because in the present case the mortgages or bills of sale were not given on the same property. In the cases relied on mortgages were given on the same property but by different mortgagors and the courts held that Code § 67-118 "does not apply to such a case, but only to a case where both mortgages are given by the same person on the same property." In the present case the bills of sale to secure debt were given by the same person but originally on different property. But since the properties were so mixed and co-mingled as to render it impossible to ascertain which bill of sale covered which property, we think the principle was the same as if both mortgages or bills of sale covered the same property and that it was for the court, using equitable principles as set out in Code § 67-118, to settle the issues.
The court did not err in overruling the motion to discharge the rule.
Judgment affirmed. Quillian and Nichols, JJ., concur.