
    Anderson & Son v. Matthews.
   Atkinson, J.

A tenant rented certain land for the year 1917, agreeing to pay the landlord as rent one thousand pounds of middling lint-cotton, due October 15th of that year. In the fall of the year the tenant at different times sold certain bales of cotton which he intended should be applied as rent cotton. He pa'id small sums as taxes for his landlord, and deposited the balance of the proceeds of the sale in bank to his individual credit, against which he drew his cheeks in favor of the local agent of his non-resident landlord. One of the checks was paid. A creditor of the tenant instituted an action against the tenant, and, upon the basis of the pending suit, caused summons of garnishment to issue and be served upon the bank. After the garnishment the tenant issued to the agent of the landlord a second cheek against the fund, which was not paid. The garnishee having answered indebted, tiie landlord interposed an equitable claim to the fund, upon which an issue was made between the landlord and the creditor of the defendant as to the right to the fund in the hands of the garnishee. There was evidence tending to show, beside the facts as indicated above, that of the amount found in the hands of the garnishee the greater part represented proceeds of the sale of cotton which the tenant claimed that he had sold for the use of the landlord, while the balance was derived from the sale of certain cottonseed. 'I'lic jury returned a verdict finding for the landlord the sum representing the amount of the proceeds of the cotton, and in favor of the creditor for the balance. The creditor made a motion for new trial, which being overruled, he excepted. The motion for new trial contained the usual general grounds, and several grounds complaining of the charge of the court. Held, that the evidence was insufficient to show actual or constructive delivery of the cotton; and the verdict, in so far as it found in favor of the landlord, was unauthorized by the evidence. Judgment reversed.

No. 1763.

October 2, 1920.

Equitable petition. Before Judge Walker. Wilkes superior court. November 6, 1919.

Colley & Colley, for plaintiffs. Clement E. Sutton, contra.

All the Justices concur.  