Allen v. Sharp
Allen v. Sharp
Opinion of the Court
This case came before the court below on the trial of an issue as to the distribution of money in the sheriff’s hands arising from the sale of the property of S. H. Stone, trustee, etc., by virtue of two fi. fas., one in favor of Sharp, guardian, and the other in favor of Willingham & Dunn, against said Stone, trustee, etc. The property sold for the
There is no complaint made in the motion for a new trial, or insisted on here, as to the payment of the tax fi. fas. It appears from the evidence in the record that they?, fa. in favor o"f Sharp is of older date than either of th efi.fas. of the other parties claiming the money, but they insist that inasmuch as their fi. fas. were issued on judgments rendered against the trust property that was sold according to the sections of the Code, 3377 to 3382, inclusive, and as the Sharp fi>.fa. was not issued on a judgment rendered against the trust property as required by those sections of the Code, that the same is void, and that their fi. fas. are entitled to claim the money in preference to the Sharp fi. fa. The reply is that the Sharp judgment was not founded on, or obtained, to enforce any claim against the trust estate for services rendered, or for articles, or property, or money furnished for the use of said estate, but the Sharp judgment was obtained for the purpose of enforcing a lien against property for the payment of the purchase money due therefor as provided by the 3654th section of the Code, and the question is whether the Sharp judgment and the fi. fa. which issued thereon were sufficient, according to the previous rulings of this court, to authorize the plaintiff therein to enforce his lien for the purchase money against the proceeds of the sale of the house and lot sold by the sheriff ? The declaration of the plaintiff sets out a note made by Stone as trustee for wife, whereby he promised to pay the plaintiff $500.00 for purchase money of house and lot in
But the plaintiff’s judgment is not void, and if the money in the sheriff’s hands is, in fact, the proceeds of the sale of the house and lot in the town of Forsyth, for the purchase money of which the plaintiff’s judgment was obtained, then it is equitably entitled to be paid out of the proceeds of the sale of that house and lot, notwithstanding that specific house and lot is not described and set forth in that judgment. In view of the facts of this case, we reverse the judgment of the court below, with directions that the money be retained in the sheriff’s hands, with leave to the ¡fiaintiff to prosecute his equitable claim thereto as he may be advised, on giving the other parties in interest reasonable notice thereof. Let the judgment of the court below be reversed, with directions as hereinbefore indicated.
Judgment reversed with directions.
Reference
- Full Case Name
- Allen v. Sharp, guardian
- Cited By
- 1 case
- Status
- Published