Harrison v. Richardson , 99 Ga. 763 ( 1896 )

Lumpkin, Justice.

An execution in favor of Richardson was levied upon a tract of land as the property of Harrison, to which a claim was interposed by his wife. The property was found subject, and Mrs. Harrison excepted to the overruling of her motion for a new trial.

1. Her claim of title rested upon a deed from the sheriff to her as the purchaser of the land in dispute at a sale thereof under certain justice’s court executions against her husband. This sale occurred more than six years before the rendition of Richardson’s judgment against Harrison. Hpon these executions were certain entries of nulla, bona, signed “W. B. Edmondson, constable.” Richardson contended that these entries were void because, at the time they were made, Edmondson was not, in point of fact, a lawful constable. It appeared from the evidence, that before the making of the entries in question he had been elected and had served as constable, and also, that at the time these entries were made, he was “acting as constable generally.”' The court' charged, in substance, that, under the facts recited above, the entries were not invalid, although Edmondson, at the time of making them, may not have been.' under bond. We do not think this charge was erroneous, for enough appears to show that Edmondson was at least a de facto constable. ■

2. An effort was made to impeach Mrs. Harrison’s title by attacking the validity of the judgments under which her husband’s property was sold by the sheriff. It appears that after the rendition of those judgments, and while they were apparently valid and subsisting liens against the property of Harrison, he had, for the purpose of borrowing money, made an affidavit in which, among other things, it was stated that at the time of its execution there were no judgments binding his property. This paper was offered in evidence by the plaintiff in execution, for the purpose of showing that the judgments against Harrison under which the sheriff sold the property to Mrs. Harrison were void at the time of the sale. Clearly, this evidence amounted to hearsay only, not being rendered otherwise because in the form of an affidavit. Treating it as an admission, it could in no possible view be binding upon Mrs. Harrison, not having been made by her, but by her husband, who certainly could not undertake to bind her by his own statements made in a transaction in which she was in no way legally concerned. The trial judge, however, admitted this affidavit, and also, over the claimant’s objection, permitted counsel for the plaintiff to argue to the jury that the affidavit was the sworn testimony of the defendant in execution. The errors thus committed were manifestly prejudicial to the claimant’s case, and require the granting of a new trial. Judgment reversed.