The Weekly constitution. (Atlanta, Ga.) 1868-1878, February 03, 1874, Image 1

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Newspaper Page Text4 THE WEEKLY CONSTITUTION. VOLUME YI.I ATLANTA, GEORGIA, TUESDAY, FEBRUARY 3, 1874. INUMBEK 52 fetU 8 fonshteifcra. Tile Constitution and Sun. ATLANTA, TUESDAY, FEBRUARY 3. TBRMS of thh weekly constitution. Weekly One Year $2 00 “ Six Months 1 00 Olabo of Ten .• 15 00 Bead in your • • i tenant, and upon delivering the possession to Lockett, he pntone White in possession. Bathe does not positively state that Lockett was at any time in actual possession of the land, and he makes no meni ion whatever of the personal property. Mr. Ely, solicitor and the case here. In this State a mortgage in its inception is nothing more tuan a security for the payment of money, and it so continues to be be, and nothing more after the breach of the condition, there- foie, creates a lien only, and not an estate." counsel for Lockett, in this cause swears that And this Court, in the United States vb the FEDERAL COURT DECISION. United States District Court Northern Dis trict of Georgia. Bill for injunction and relief. In bankruptcy—In re Daniel P. Hill. Benjamin G. Lock.ett vs. Daniel P. Hill, the bankrupt and bis assignee, Edward P. Hoge. > ER8KINE, J. This suit arises out of a mortgage given by Util in January, 1871, to Lockett. Tbebill states that Bill being indebted to Bust, John son A Co., (of which firm Lockett was £ member,) and in settlement and liquidation thereof, ilill drew bis draft on Burt, Johnson A Co., payable to bis own order; for $7,451 75, and it was accepted by them and trans ferred to Lockett, and to secure its payment and in consideration of supplies and money, and to ditebarse & certain draft in favor of Ketchum & Hartridge, Hill executed the mortgage to Lockett on 1,625 acres of land and certain personal property, and which mortgage contained, among other stipula tions, a power to sell the land on nonpay ment. Lockett also alleges that he was placed in possession of the property, real and personal, on the 20th of December, 1871, and continued in poeseasion until he conveyed the land nnaer bis power, on the 18lh of December, 1873, for $4,875, to the the firm (of which he was then a member) of Bust Johnston & Co.; and thaa be is still in possession of the personal property. He prays an injunction against Hoge, the assignee, to restrain him from selling any of the personal properly, or interfering with any of the mortgaged property real or per sonal ; and asks for a subpoena against both Hill, the bankrupt, and Hoge; and the bill prays for “ other and further relief.” There is an addendum (o the bill—au offer to take the property at a fair valuation to be determined by the Court, or to sell the per sonal property by virtue of his power and account to the assignee for any surplus; or to surrender the property upon payment of his debt The conveyance in mortgage from Hill, the bankrupt, to Lockett the mortgagee and complainant, was executed on the 16th of January, 1871, by which be conveyed to Lmkct» jl pbBStation in Dougherty county ibThis State, containing sixteen hundred - and twenty-five acres, also certain personal property on the land consisting of fourteen mutes, all the stock of hogs, cattle,<&c., wag ons, darts and farming Implements, and like wise the crops of corn, cotton, and fodder, to be raised on the place, daring the said year 1871; provided nevertheless, if Hill shall pay on or before the 1st day of October, 1871, a certain draft accepted by one Bust & Son, and all advances bo made during the year for provisions, and shall save Lockett harmless on the Ketchum & Hartridge draft, and all costs, expenses and fees, then thedeed to be void, else of lull force. The* mortgage further stipulates that if Hill shall fail to pay the draft accepted by Bust & Son; at the time, and in the manner specified, and also the advances for the present year, then Bust & Sou or Lockett shall have the right to foreclose sv.d lien or mortgage on the grow ing crops and other personal property, inac cqrdance with the statutes of this State; as tg the real estate, it Is further agreed that Lockett shall have the right t« foreclose this mortgage upon the same, or to sell said plan tation npon the most favorable terms practi cable, Either at public sale to the highest bidder, or at private sale, and to account to Hill, after paying off said debts, for the balance ; and Hill constitutes and appoints Lcckett bis attorney in fact, ratifying his acts and doings in the premises, provided, nevertheless, that this power of attorney to convey and make titles shall not operate until after the first day of October next, 1871. On the 20th of December, 1871, Hill and Lockett entered into a written agreement, under seal, reciting that Hill being in debted to Lockett in a large amount and to secure the debt, as well as for other purposes, he, on the 16th of January, 1871, executed to Lockett a mortgage to certain propery real and persoal, and being still in debted to Lockett in the sum of six thous and Eeven hundred and thirty-three dollars twenty-three cents with interest from the 1st of December, 1871, at the agreed rate of ten per cent., from E&id 1st of December until paid. And that by said mortgage Lockett had therighttosell thcland therein conveyed, but the present not being considered a judi cious time to make the sale, it is agreed that Lockett shall take possession of said property real and personal and shall have the light to rent the plantation and the personal property in terms this day sgreed upon between Lock ett and one John La Bcque, and that the rent shall be applied to tbe extinguishment of the debt due by Hill to Lockett; and that dur ing the ensuing year (1872) Lockett shall have the right to sell all of the property both real and persoal, mentioned in said mortgage con sisting of the lands mentioned in the mort gage and personal property this day turned over to La Boque and apply the proceeds, firstly, to tne balance due on the debt above mentioned in this agreement, and secondly, to the pay ment of the Ketchum & Hartridge draft (provided this draft has to be paid), and juockctt is appointed attorney in fact for Hill, with full power and authority to act as his attorney in feci and to make all needful conveyances. On the 24th October, 1873, Hill wrote Lockett that as he was unable to pey him he might take all the atock, etc., on the land (“Jl of which is mortgaged to you”) at afair valuation, and credit the same on tne debts. There is no evidence that this ofier was ac cepted or rejected. Much was said during the argument-as to whether Lockett ever took actual possession of the land and per- nonal property. The evidence read, is con flicting. It was, however, agreed by the in strument of December 20,1871, that Lockett “shall take possession of tbe said property, real and personal, and shall have the right to rent and hire,” etc. By a writing dated December 20,1871, Lockett rented ^“plan tation of D. P. Hill,” and the personal prop erty thereon, for the year 1873 to La Bcque for forty bales of cotton, to be raised on the place and to be delivered to him. One Blake filed an affidavit stating that he rented the plantation from Lockett for 1873, and paid him the rent, and regarded Lockett as the lawful owner and possessor of Eaid plantation, and held tbe same as his he was present on the plantation of D. P. Hill on the 20th December, 1871, and that in bis presenee Hill delivered the possession of the plantation to Lockelr, and all the per sonal property thereon. The bankrupt, in bis answer, read as an affidavit, denies that he ever, at any time, turned over the posses sion of the plantation and personal property to Lcckett, but siihply authorized him to exercise a supervisory control over the same, in order to protect and farther defendant’s interests in the way of making crops. He also denies that Locket rented ont the prop erty for 1872 or 1873, bat on the contrary, he says that he rented out the plantation, stock, etc., etc., to La Boque for 40 bales of cotton for the rent; bat intending that Lockett should have the rents and profits, he caused La Boque to execute the contract with Lock ett instead of with himself. He farther says that Lockett never gave him (Bill) leave to rent the place for 1873 to Blake, as his (Lockett’s) sgent; but that he himself rented it to L. Blake, without obtaing the consent of any one. except that of Blake: bntlet Lockett collect and retain the tents due by Blake for 1873. On the Ed of December, 1873, Hill filed his petition in bankruptcy, and was adjuged a bankrupt by Begister Black. On the 9 th Lockett was, on petition of the bankrupt, re strained from selling the mules, wagons, etc, enumerated in the mortgae; and Edward F. Hoge was appointed assignee of Hill on the 20th; but cn the 13‘.b, intermediate tbe filing of the petition in bankruptcy and tbe ap pointment of the assignee, Lockett sold tbe land, in fee, to Bust, .Johnson & Co, (tbe mortgager himself being the company) for $4,675, by a warranty deed, executed in tbe name of Hill, the mortgager and bankrupt; tbe deed of conveyance is signed and sealed as follows: “D. F. Hill, ft. a], by B. G. Lockett, attorney in fact.” Hill, in his an swer, swears that this land cost him $16,225 before the war. On the 2d of January, 1874, Lockett instituted the present suit, aud by consent, tbe court granted an order restrain ing the assignee from selling the personal property, until argument could 'be bad, on tbe prayer for. injunction, etc. Lockett, by counsel, insisted that by virtue of the power of sale inserted in the mortgage of January.16,1871, and in the power of sale in tbe agreement of December 20,1871, and by the power of attorney contained in each of these instruments, appointing him attor ney in fact to sell, convey and make all needful conveyances, and by the authority given him in the latter instrument to take possession of all the mortgaged property- real and personal—he had a power coupled with an interest, and therefore a perfect right to convey the fee as he had done, and author ity to make an absolute sale of the personal properly, notwithstanding Hill was then a declared bankrupt; and that no part of this property—real or personal—is assets of the bankrupt’s estate. On the p9rt of tbu assignee it was con tended that all said roll ana personal proper ty is assets of Hill’s estate, and that it passed to him by deed of assignment for disuibu- tion among the creditors of the bankrnpt, under the bankrupt act of 1867, and its amendments. And for tne bankrupt it was urged that be being the bead of a family, is under the first section of the seventh article of the State Constitution of 1868, and the 8tate law of the same year (Code section 2.002) entitled to a homestead in said mortgaged land to the value of $2,000 in specie, and exemption in the personal property to the value of $1,000 in specie. It is a rule too well aettledjto need the cita- ti n of authorities, that a collateral power, although in many instances irrevoca- ole by the principal, expires with his life or bankruptcy, but it is otherwise when the authority or power is coupled with an inter est, for in the latter case it is not extinguished by the death or bankruptcy of tbe appointor, it survives and may still, as a general rule.be executed in tbe name of tbe person in whom it was placed. Venerable authority on ques tions of this nature says that if a person clothed with a power hath at the same time an estate in the land, the power is not collat eral because it savors of tbe land: Hardress It., 415. And the Supreme C3uri of the Uniten States, by Chief Justice Marshall, in Hunt vs. Bousmanier, 8 Wheat 175, said: “What is meant by tbe expression 'a power coupled with an interest ?’ Is' it an interest in the subject on which the power is to be exercised, or is it an interest in that which is produced by the exercise of the power? We hold it to be clear that tbe interest which can protect a power after the death of a person who creates it most be an interest iu the thing itself. Ia other words the power must be engrafted on an estate in tbe thing. A power coupled with an interest is a power which accompanies or is connected with an interest. The power and the interest is united in the same person. But if we are to understand by the word ‘interest’ an interest in that which is to be produced by the exercise of the power, then they are never united. The power to pro duce the interest must be exercised, and by its exercise is extinguished. The power ceases when the interest commences, and, therefore, cannot in accurate law language, be said to be ‘coupled’ with it. * * * * * But if the interest or estate passes with the power, and vests in the person by whom the power is to be exercised, such person acts in his own name. The estate being in him, passes from him by a conveyance to his own name.” Does the power now in question answer the definition given in Hardres, or the equally accurate and more comprehensible description given by the Supreme Court? Had Lockett, at the time when the power was execured, a vested interest or estate in the mortgaged property ? was the power conferred conjoined with an estate, then held by Ldckett, in the thing itself? “A mortgage in this State is only a security for a debt, and Dasses no title.”—Code, 1954. Avoiding unessential matters as far as may be, and matters collat eral to the questions for decision, I will quote from or refer to the construction given to this statute by the State Supreme Court, as found in the Reports. In Davis vs. Ander son, 1 Kelly 176, Warner, J., in delivering the opinion of the Court, said that “a mon gage in this State is nothing more than a security for the payment of the debt; and the title to the mortg ged property remains in the mortgagor until foreclosure and sale, in a manner pointed out by the statute.” * * * .* “Under our law the legal title to the mort gaged property remains in the mortgagor until after foreclosure and sale.” And the in terpretation given by that learned an distin guished Judge h8S been followed from that day to this. See the Beports passim In Scott V3. Warren, 21 Ga. R., 408, McDonald, J., said: “ In England and in some of the States of the Union, when the condition is broken, tbe estate is so absolutely vested in the mortgagee that be may maintain eject ment and recover the premises This is not Athens Armory, 35 Georgia Beports, 344, said: “A mortgage iu Georgia is only a secu rity for the debt; the title to the property re mains in the mortgagor. This is fully set tled as a rule of property by a series of State adjudications, and when such is the case the Federal Courts adopt the decisions of the estate Courts.” It has been nearly a century and a half, if my researches are correct, since powers of sale, inserted in conveyances in mortgages were first known to the coarts in England. And notwithstanding the validity of these powers has been supported in courts of equi ty, and they have at least impliedly become a part of the jurisprudence of that country; yet. as late sb 1825, Lord Chancellor Eldon, in Roberts vs Bozan, mentioned in 1 Fow. on Mortg., 9,13, characterized them as extra ordinary and of a dangerous nature. The first reported case in our own country which I have been able to find, on this im mediate subject, is Bergen vsBennet,.l Caines’ cases in error, 19. This was a bill to redeem on the ground that the power to sell, contained in the conveyance in mortgage, became extinct on the death of the mortgagor. The Court for the Correction of Errors held that the authority to sell was a power coupled with au interest, and dismissed the bill. I will quote portions of the language used by Kent, J., who gave the opinion of the Court, and which embody the principal reasons for holding that the power inserted in the mort gage was a power coupled with an interest: “But when power is given to a person who derives, under the instrument creating the power, or otherwise, a present or future in terest in the land, it is then a power relating to the land. * * * * The power now in question answers exactly to this definition” (Hardress, 415) “of a power with an interest,because the mortgagee has at the same time a vested estate in the land, and it does not answer at all to the definition of a power simply collateral; for that is but a bare authority to a stranger, who has not, and never bad, any estate whatever.” I may here remark that the mode of enforcing this power of sale is regulated in that State by statutes. The Court said that a sale under such power: “is a species of foreclosure by Wilson vs. Troup, 2 Co wen, 195. This was also a bill in equity to redeem It was held by tbe Court as had previously been done in Bergen vs. Bennett,and Wilson .vs. Tronp, 7 Johns, C. R. 25, that a power of sale contained in a mortgage is a power with an interest And the Court of Errors inti mated the opinion that a power of sale in serted in a mortgage was in the nature of a power appendant or a power annexed to the land. A power appendant is where a person has an estate in the land, and the estate to be created by tbe power, is to, or may take effect in possession dnring tbe continuance of the estate to which the power is annexed as a power to tenant for life, in possession to make lease* Co. Lilt And Southerland J. Cowen 195 said: mortgagee to sell is a power to create or acquire to himself the equitable estate in the land during the continuance of the legal estate conveyed to him by the mortgage.” The equity doetrine in New York and in nearly all the States, is that the mortgage is but a security for the debt, and the mort gagee has but achattit d interest,and that until a decree of foreclosure, tbe mortgagor con tinues the real owner of the fee. The equity of redemption is consid ered to be the real and beneficial estate tan tamount to thefeo atlaw. And in thecase last cited Woodworth,J.,8aid: “The mortgagor, notwithstanding the mortgagee, is deemed seized and is the legal owner of the land, as to all persons except the mortgagee, and his representatives.” Citing Hitchcock vs. Har rington, 6)h John’s Bep, 290. The validity of the clause of a power of sale inserted in a mortgage ha3 been, as al ready remarked, established in the Courts of Chancery at Westminster (Caote on Mort gage, 128 et seq.) and also in New York and indeed, in nearly all the States. In New York and in other States the mode of enforc ing these power of sale mortgages is in a greater or less degree guarded by statutes, againgt irregularity and abuse. Such enact ments are highly commendable, for it may be borne in mind that the mortgagee holds the antagonistic and anomalous position of crediorand trustee united in himself, and it must often transpire that the time the plaee and the manner of selling will present ques tions of difficulty and importance to the par ties. In New York, for example, these must be according to the provisions of thestatnte, six months notice in the public Gazette before the mortgagee can sell under t ie power of sale. S:e Jackson vs. Lawson, i7 Johns. R. 300. With these remarks, I will proceed to as certain whether under the statute law of this State and the construction which it ha3 uni formly received by the State Supreme Court, a power of sale contained in a conveyance in mortgage, executed in this State is a pow er coupled with an interest Directing at tention to the cases which have been cited on the subject of a power of sale contained in a conveyance in mortgage, it will readily be perceived that the reasoning in the deci sions of the courts in England and New York is founded on the legal fact that to create a power combined with an interest, the donee most have at the time of the crea tion of the power a vested estate in the land or thing. Such power may be classed as an appendancy, and the power must have an estate to conjoin with and nourish it. When this is not the case, the power is simply col lateral and ends, at farthest, with the life or bankruptcy of tbe donor. In England and in other States, including New Yojk, and in the latter State at least, when the decisions above noted were made, ejectment could be maintained by the mort gagee against the mortgagor on his failure to pay the money at the time stipulated. Where as in Georgiia no ejectment or other posses sory action on breach of the condition by tbe mortgagor has been recognized as a part of its j orisprudence. The role of evidence is that tne plaintiff in ejectment must succeed, if at all, on the strength of his own tike, and not on the infirmity of the claim of the de-^ fendant. So, too, the claimant, to support his action of ejectment, mu3t be clothed with the legal title to the lauds. In the language of Kent, Cb. J. inLathropvs. Demont,9 Cowen 78: “In the action of ejectment we must look steadily to the legal title.” In Rsed vs. Shepley, 6 Vermont R.502, it was resolved that iit an ejectment a mortgager cannot dispute the title of the mortgage* Thus, in England and in New York an other States of the Union, upon the deliv ery of the ordinary conveyance in mort gage, an estate or interest passes to and vests in the mortgage^ ana such es tate being then vested in him it is sufficient, in law, upon which to raise a power coupled with an interest; and the estate or interest in the land or thing being in the mo: at the time he is clothed with the authority, the estate or interest supoorts the power and they stand united. ’ In this State, at least so far as my informa tion extends on this immediate subject, the common law doctrine, even in its modem and modSed form, in relation to convey ances in mortgage, has never met the sanc tion ol the Supreme Court of this State. Here the rights of parties to these securities for debts, from beginning to end, are regu lated and enforced solely by the enlightened principles of equity; the very language of statute in equity. “A mortgage,” says the Code, sec. 1954, “in this State is only a secu rity for a debt and passes no title.” As already observed, the State Supreme Court, iu Davis vs. Anderson, said that the title re mains in tjje mortgagor, until foreclosure and sale in the manner pointed out by the stat ute. Aud McDonald J., in Scott vs. Warren, said: “ Here a mortgage in its inception is nothing more than a security for the pay ment of the money, and it so continues" to be, and nothing more, after the breaeh of the condition, the mortgage therefore creates a lien only and not an estate; and the mortgaged.'in relation to the mortgaged properly stands on the same footing as any other creditor.” And this view of the law of mortgages in Georgia was approved by Lumpkin. J.,in delivering the opinion of the Court in Elfe vs. Cole, 26 Ga., 196. Numerous other cases, containing like views, might be cited; but it is deemed un necessary to do so. Counsel for complainant read tbe case of Robertson vs. Vason et al., 37 Gal, B. 66, as affirming and adopting as a rule of decision tbe doctrine of the Courts in Westminster and New York. In Robertson vs. Vason et al., the main question before tbe Court was whether "an Injunction which had been granted at theinstance of the mortgagor to iestrain an innocent assignee of the notes and mortgage from selling the property un der a power of sale, given to the mortgagee, his heirs and assigns, was properly dissolved. And Warner, CL J;. for the Court, held that it was. The Chief Justice, in the latter part of his opinion, said: “As a general proposi tion the power to mortgage would seem to include iu it a power to authorize the mortgagee to sell in default of payment. William vs. Troup, 7 Jons, C. R. 32. In this case - there ia an express power given by the mortgagor to the mortgagee or bis assigns to Bell the mortgaged property od default of payment, upon giving thirty days notice.” I have perused the very ex tended statement of the case made by the Reporter, and have not discovered one word in it, nor in the opinion of Chief Justice Warner, which says or indicates, in there motest manner, that the authority to sell was a power connected with an interest, and I respectfully hazsid the remaik that nnder the facts of that case, as they appear in the report, it could not be a point for decision. Tne mortgagor was before tbe court propria persona, and not a declared bankrupt. Bat notwithstanding the power from the mort gagor to the mortgagee, and his assigns, was not coupled with an interest, yet it may have been, and probably was, given for a valuable consider:«. lion, and consequently, in contemplation ot law, irrevocable, but would cease with the Walsh are not ordinary powers, operaiiog by means of limitation of use, but tivsts declared on the legal estate in the mortgagee.” Hilliard on Mortgages, 133,3d Edition. I atn of the opinion that the power of sale cpntained in the mortgage or that inserted iu tho agreement of December 20lbf 1871, was not, in either in stance, under the'statute lawsof this State, or the decisions of the State Supreme Court, that power which is known in legal lan guage as a “power coupled with an inter est” Adverting to the synopsis of the bill, etc, in a former part of this opinion, in which is embodied the substance of the mortgage of January 16,1871, and agree ment of December 20th, 1871, it will be seen that the authority to foreclose, as to the per sonal praDerty, on default of payment was given to Bast & Son or to Lockett, and the power to foreclose as to the land, or to sell it if the condition was broken, was given to Lockett. It will be remembered that the mortgage conferred no power to sell the personal property, that authority was given by the agreement. If tbe authority inserted in the mortgage was a power conbined with an interest, it mast have been based upon a vested estate in Lockett. He did not fore close the mortgage upon either tha personal or real property, or sell the land after the first of October, 1871, (and which act a pro viso in the mortgage authorized him to do if Hill did not pay the money at the time ap pointed), or before the 20th of December, 1871, on which day tbe “agree ment” was executed This in strument says Lockett shall take posession of the land and personal property mentioned in the mortgage and rent the same to La Boque “in terms this day agreed upon between Lockett and LaRoqe,” and it is also stipulated that Lockett “shall oave the right during the ensuing year (1872) to sell all of the real aud personal property this day turned over to La Roque.” If the power inserted in the mortgage to sell the land, alter the 1st of Octbsr, should the debts not then be paid, was a power linked with an interest, re granting it by the agreement of December 2fcb, 1871, was no tional and superfluous, unless it bad previ ously become extinct by efflux of time or otherwise, and the language of the agree ment does seem to indicate that it had at that period been extinguished. As just mentioned, it is provided in the agreement that Lockett shall take possession of the mortgaged prop erty real and personal and rent and hire the same to La Boqne, and Lockett is given the right, dnring the ensuing year, to tell ail of said land and personal property. Courts disregard fractions or divisions of a day unless it be necessary to ascertain which of two events first happened. And I think it is proper to apply tbe exception here. It is plain from tbe language used in the agreement, and the fair and ordinary import of the words employed that Lockett, before the execution of the agreement, had agreed to rent and hire the mortgaged property to La Boqne, and that it had been turned over to him—transferred; these were accomplished facts, effected ante rior In time to the delivery of jhe agreement, though done on the same day. The words are not that Lockett is in possession, bnt that he shall take possession, etc. In the contract of lease for the mortgaged property made between Lockett and La Roque, it is rented for the ensuing year, 1873, as the “plantation of D. P. Hill.” La Boqne ac knowledges himself as the tenant of Lockett, and signs the lease; Lockett does not sign it. Ely, in his affidavit, says that Hill, on the 20th December, 1871, delivered the posses sion of the plantation and all the personal property thereon to Lockett. Hilt swears that he never did turn over the possession to Lockett If the possession was turned over to Lockett on that day—and I express no opinion on the weight of the evidence— the conclusion is that it most have been snbseqnent, in time, to the execution of the agreement, and consequently after the property had been turned over to LaRcque, the lesiee. The agreement also provides mat “Lockett shall have the right during the en suing year” (1872) “to sell all the real and personal property this dayjturned over to La Roque.” And .Hill bestows on Lockett fall power to act as his attorney, and to make all needful conveyances. No time was specified in the greement for the termination of the therefore the law of this State construes it to be for a calendar year: Code, sec. 2290. The agreement, as mentioned a’raady, gave him the right daring the en suing year to sell all the real and personal property tamed over to La Boque. This power he did not execute during 1873: there fore, as he mast have known the certainty of his own term, he ought to have availed himself of his power to sell tbe property in dicated in the agreement daring its continu ance; and whether the right to Bell within the time named was a naked authority, re vocable at the pleasure of the principal, or was a power irrevocable by the grantor, and. consequently current until his bankruptcy.or power coupled with an interest, is here an inquiry of no legal consequence. The right to sell the entire Droperty during the ensuing year, was sus pended by Lockett beyond the limitation clause in the agreement, and being oncesna- pended by his own voluntary act, it is, in my judgment, gone forever. Bat sb the power of sale was merely cumulative, it could not bar a forclosure: Turbish vs. Sears, 2 Cliff 454. “If a man grant all his trees to be taken within five years, the grantee cannot take any after the expiration of five years; for this is in the nature of a condition annexed to the grant.” Moore 883. Lockett alleges that Hill, as his agent, rented the pioperty to BlaKe for the year. 1873. .Hill says he rented it to Blake him self, bat allowed Lockett to receive the rent, to be applied in discharge Of the debt due to Lockett. Blake avers that he rented the plantation from Lockett for 1873, paid him the rent and surrendered the place to him, and he put White in possession. Lockett says he has been in possession of all the mortgaged property from the 20th December, 1871, until he sold the land, shortly after the bankruptcy of the mortgagor, and is still (2d January,187t) in possession of the per sonal property. Let it be conceded that Lockett was in possession as he states, though there ia no evidence in the record that Hill rented him the property for 1873, so then he must have been in as a tenant at will or at sufferance. The possession under the agree ment, or as a tenant at wilt, or at sufferance, would not be of .that dignity and nature which could be engrafted on a power in a mortgage so as to make it a power coupled with an interest; It would not bring the power within the definition:given in Har dress, or by Kent, J. or. Chief Justice Mar shall, of a power coupled with au interest. If the power of sale given to Lockett was what I have ruled it to be, a collateral power, then it became extinct, at farthest, on the bankruptcy ot Hill, nine or ten days prior to the sale of the land by Lockett Bat if it was really a power unitec with an interest, then it survived his bankruptcy, and Lockett could (were it not for reasons which will be explained presently) have conveyed the property in his own name, but not, as he ad ventured y> do, in the name of Hill, who was at least, he was in capable in law to execute a deed of convey ance. And assuming the ’power conferred to be of the latter kind, still -Lockett could not purchase this land himself, eitner iu sev eralty, joint tenancy, or otherwise; he could not be vendor and vendee; tbe characters are inconsistent, and the power did not extend this far. Midland et al. vs, Girard et aL, 4 Howard, 503; Griffin vs. Murine Company, 52 HI R., 130. Tbe remaining question which I shall now consider-^and it is a question of importance in this case—springs from the record. Let the fact be yielded that the power granted by Hill, the mortgagor, to Lockett, the mortgagee, was a power connected with au interest, and consequently not revoked by the bankruptcy of Hill, nor presumed to have been lost previously by the laches of Lockett, the donee, in not selling the property -within the time limited, could he by virtue of such power of sale, convey the land to himself or any one else after Hill had been adjudged a bankrupt under the provisions of the Bankrupt Act, unless the sale was made by the order and authority of this Court? Now, although Lockett may have, by a clause iu the mort gage or agreement, received a power coupled with an interest, yet, after all, he would be but a trustee for Hill, tbe mortgagor, bis heirs or assigns, for neither the mortgage, the agreement, nor the power, invested nim with an absolute and indefeasible estate in the property, which is the subject of this contro versy; and as agent or trustee fer the mort gagor, his heirs, eta, a Court of Chancery could compel him to account for the rents and other fruits of the mortgaged property. Did the bankruptcy of Hill discharge or in any manner lessen the responsibility of Lock ett as trustee? Surely not. True, when Hill became a bankrupt, Lockett was no longer liable to account directly to him; for the moment he filed his petition in this Court under tbe Bankrupt Act of March 2,1867, all his estate, of every kind and description, in possession or in action, came by the mere operation of the Bankrupt Law into the possession of . this Court, and it is now in its custody aud under its immediate control, and no State court, nor person, can, interfere with the possession except by per mission of this Court. In re SteadmaD, 8 N. B. R., 319. It i3 declared by the. first section of the Bankrupt Act, that the juris diction of the United States District Courts, acting as Courts of Bankruptcy, shall extend “ to all cases and controversies arising be tween the bankrupt at d any creditor or cred itors who shall claim any debt or demand under the bankruptcy; to the collection of all the assets of the bankrupt; to tbe ascer tainment and liquidation of the lienB and other specific claims thereon; to tbe adjust ment of the various priorities and conflicting interests of all parties; and to the marshal ing and disposition of tbe different funds and assets, so as to secure the rights of all parties and due distribution of the assets among all the creditors.” Thus it will be seen, that the Congress of the United States has conferred on the Bankruptcy Courts a broad and comprehensive authority,sufficient ly extensive for this Court to entertain juris diction over the respective rights of tte pa: ties in and to the property, real and personal, which was mortgaged by Hill to Lockett, and to cause it to be administered in accordance with the Bankrnpt Law. Hill, the bankrupt, appears on the face of the bili as a party defendant; but whether he is a proper party need not now be inquired into; be appeared and responded to the alle gations and charges in the bilL The prayer for the writ of injunction is refused: and the order previously granted restraining the assignee from selling the per sonal property is hereby set aside. Mr. Ely, for Lockett, the mortgagee and complainant. Mr. Hoge, the assignee in propria persona, and Mr. Cnlberson and Mr. Conley, lor both defendants. ‘ Filed January 28,1874 G. W. ADAlB, Auctioneer EXECUTOR’S SALE. LYNCH’S QUARRY*. B Y virtue of an order granted by the OrdlnarysT' the county of Fulton, State of Georgia, to the Executors of Patrick Lynch, late of said county, de ceased. for the sale Of tne land and personal property- of said, deceased, will be sold before the ooait-house - door on the first Tuesday, the 3d day of March, 1874, within the legal hours of sale, all that tract or parott' ot land In the etty of Atlanta, being a part ot land. \ lot 83 in the 14th district ot originally XSsnry sow - Fulton county, known a* “Lynch’* Quarry,**’ con taining 19X acres, more or less, and more par ttcularty described hy plats trom survey to be seea at Colonel G. W. Adair’* office. also, 3 vaeant lota, 95 by 60 feet, on the east nWe or Broad at, adjoining Constitution Building and Book'. ■ and Ladder Track House. Terms—One-third-c*sh;: one-third lit six months; balanoe February.1,1875, with small notes for the time portion, bearing ten; per cent, interest, or the privilege of paying all cash. Also, a fine Steam Pomp at the Qmrry, and the r tools and implements for working she Quarry; 18.' mnlee, 5 wagons, 1 carriage, 9 boggles ana hem ess Personal property sold for cash. JAMES LYltCUw PETEELYNCH, jattB-dtds •Executors. - gboksIA) Campbell County. On Dittaut's Omci, January 29;18R.i J OHN PATTON has applied forexenju >t »f >>.* sonalty and I win p,si -ip>x <• <>eii ft o'clock a u. on inelkn.uv u Paoioary, 18U,atxatT' office iu oura, in -ala conn’y. even nnaer my official signature. \\ R. C. BEAVBR3,' \ ^ JauSl-wgw Orttnsrv. V GEOKGIA—Fulton County. OBDiiuaY’s Orricu, January 81, 1874. W P. PLEBGER has applied for Letters cdt- • Guardianship of tbe person and property «r-' George W. Brewster, minor: - All persons conoeraed will file their objections, 1> any exist, on or before the first Monday In. uwv. next, elselsttera will be granted tbe applicant. oaniel Pittman; fehl-wSOl Ordinary: GEOB61a—Fulton County. Okdihabx’s OrxiCB, January 31,1973.* * ARTHA A. T. PEGS has applied for Letters & ■ . Administration on th9 estate of W. H. Pegg .to of said county, deceased. All persons concerned are hereby not ; fied to fife, their objections, if any exist, on or before the first:. Monday in March next, ei«e letters will be granted tbe appl'ctnu DANIEL PITTMAN, ., febl-30d Ordiosoyr Campbell County Sheriff Sate. W ILL be sold on the first Tuesday la Marah next'v within the legs, hoars of sale, before tho Cent \ house door, in the town of Fairborn, in eaid oounty Tne Unde whereon A. B. Fears now Uvea—tots ct land No. ICO. containing 90tyi serse, more- or less,. Also, 165 acres off of lot No. 129, it being all of - ■aid lot, except 37% seres off of the North east corner of said lot and now owned by Isaac-Ooiole. - Also. 51 acres off lot No. 127, it being tho northeast fourth of lot No 127. ail In tne thirteenth district ok originally Henry connty now Campbell county ', con taining 417 acree, more or less. Upon this land there Is a good dwel'log and other out buildings with 9E> acres cleared land. This land lies on the Atlanta 4r- West point Ital'rosd, about tlx miles from Fairborn Levied on as the nroperty of A. B. Fears to satisfy a - ft fa issued from *he County Court of Campbell county in favor of Harrison MoLarln vs: A. B. Fears, prin- - cipa), and M. M. Tidwell, Indorrer, and. other ft lsa m. said A. B. Fes’s in favor of A. H. Brown, transferee nowinm> hanas. Property pointed by defendant. Also, at the tame tme and place, lot of land No ti, couiainmir2Q«)4 acres, nsoreorlesa. In toe 7th district, 4th section JL originally Coweta csw Campbell oouh- ty. This lot Uea about tlx' miles from Fairborn. Levlsaon a* tbe property of Wiley Steed to satisfy h flfalseued lnstsnter from the Superior Court of Camp bell connty in favor of Bobert Cunningham again*- Wile7 Steed. Property pointed out by defendant. Also, at the game : time and place, pare of lot o- land. No. (51), in the Ninth D.Btilct of originally Fayette, no., Campbell connty, containing forty acres, more or less; bounded on the northeast by the- \. & W. P. Railroad for 27 cb., running thence south - 45 ch., thence west 9 ch., und thence 27 eh,, 2i deg„ 39 min. west; levied on by virtne of a ft fa in favor- of P. H. Brassell vs. BoWan & Cnristtao. as the property of the said •-obert Bowan, deceased. Also, at the >ame time and place, part oi lot of land No:JU3,inthe9;hdistrict of origiuallyForsyth, now Campbell county, containing So acres, mere or less. It being the land owned by Wm. J. unines, dec’ tL, at the time of his death, except 6J acres thereof, which has been set apart to the widow tb a Homestead levied on hy virtue of two ft fas. In favor of Camp & Ohris'iau, vs. Wm. Jennings, as. the property of thp said Wm. Jennings, deceased. Above levies made and tn.-ned over to me by Con stable. « A DAVID P. WHITE. “ Feb. l-w4w. Sheriff. . ^ "OR. TUTTs" VEGETABLE V R- PllA-S* THE BELT ADVICE that can he given to persons suffering from dyspepeto. bilious complaint, colic, consumption, sick headaches;' fever and ague, nervous debility, or of any dieortto affecting tbe stomach, the liver or kidneys, istotonev., cleanse,Jmd regulate these important organs bj tar use of • dr. Turra vegetable lives pills. They act very mildly, yet thoroughly restores ttiai.. functions’ action of tne digestive organs and the to- teetlnes an! renovates the whole system. Th9y pro duce neither nsusea. griping or weakness aud may bm- taheu at any t ine without change of diet or ocoup*- 3 lion. . . r' J Price 25c a box. Sold hy all druggists. DR. TUIl’i HATt DTE possesses qualities that no other dye does. Ita efifecr is instantaneous, aud so natural thot U cannot be de tected by ’he closest observer. It la harmless and 1 , easily app led, and is In general uae among the fash ionable hair dressers in every large city lo theUnitecr- States. Price $1 a box. Sold every where. > A distinguished Clergyman of New York, speaktogr- ot tniBremcoy characterizes it a* “one of the special bless’ngs of tne nineteenth century.’* The certainty of Us healing effect, said he and the immunity froae> danger, whether administered to children or »dalt*j adapt it for the widely popular use It haa.attaUnm. None would long suffer from lung complaint m tney knew how easily they can be cured Dythia resuedyt. By ita timely use all pulmonary diseases may he m* rested and consumption—the scourge thatssraep* 3feSeTBSS «-gas V N) Campbell uo. Deputy Sheriff’&K Sales. GEORGIA* Campbell County.. W ILL be sold before the court-house dorr, inti Fairborn, Camobell county. Gt, on the fire*. Tuesday In March, 1871. betwden the legal noors o sale, the following property, to-wit: Une house and lot tn the town of Fairborn, in said- county. wherein A G Hnlsey now live*. Levied on> as tne property of T G Foster. Mrs Btrbtry Cole- tbe tenant in p.ssession at the t-ma of the levy,, being duly notified Levy made by Constable and’ turned over to me. Levied on to satisfy afi fains, favor of J W Corveli against T G Foster. Also, at the same time and place, a certain unfin. Ished brick building in the town of Fairborn, Camp— b-11 county, Georgia; numoer uuxuown. 8ai<£- bulld-ng known as the Grange Banning. Levied on. as the i.rooerty of T T Bobsaan, Wests-rook <£. Co., to satisfy a fi fa to favor Miller d; Me Sown vs T TV Botsanao, Westbrook A Co. / This January 29,1874. / j WILLIAM THOMPSON/ janSO—wlw ' ’ Deputy Sheriff. Hew York. indistinct print

Georgia Historic Newspapers

The Weekly constitution. (Atlanta, Ga.) 1868-1878, February 03, 1874, Image 1