Coleman v. Slade & Etheridge , 1 Ga. L. Rep. 215 ( 1886 )

Jackson, Chief Justice.

Slade & Etheridge ruled the sheriff for money in his hands arising from the sale of Tumlin’s land, which they had conveyed to him under the statute of this state and deposited a deed in the clerk’s office, in order to recover the purchase money due them, he only having a bond for titles from them. Other judgment creditors were made parties to this rule, and they made the issue that the judgment of Slade & Etheridge was not for purchase money, and theirs being older, had the priority of claim upon the fund. These lands which raised this fund were a moiety of a large tract which had' belonged to Atkins & Tumlin, who owed one Pace for the purchase money of the same, and the main question of fact was whether Slade & Etheridge had paid their debt to Pace, and thereby relieved them, and by contract with them had held the title to the lands until they were paid back what they had paid Pace. By their contract, the large tract having been divided between Atkins & Tumlin, Slade & Etheridge had given a bond for titles to each for his respective half, and it is Tumlin’s half which was sold and brought in this fund for distribution.

The cause was tried on certain issues put by the court to the jury; their answers were favorable to Slade & Etheridge, and judgment was rendered accordingly. A motion for a new trial on numerous grounds was denied to the contesting creditors, and they bring the case, with a very-voluminous record, for review by this court.

1. When a case is tried on issues of this sort, submitted by the presiding judge, it is for him to submit such issues of fact as will enable him to make a judgment or decree from the verdict and the pleadings and the undisputed facts in the case. It is his duty to elicit from the answers of the jury all the facts necessary to this end. lie need not sift the jury or enter into particulars; nor need he submit issues requested by counsel, if he has already propounded questions which will draw the same substantial answers from the jury. Any other rule would lead to a useless multiplicity of points for the jury, to the distraction of their minds from the broad issues to numberless narrow and really unimportant questions, and make the verdict rather an uncertain result than a plain statement of the truth, and only that truth necessary to elucidate the pending case and fix the application of law to the facts, and thus to ascertain the legal rights of the litigants.

Guided by this very obvious rule of practice, we are unable to discover, on a close examination of the questions propounded, of the answers thereto, and of' the additional questions which the able counsel for the plaintiffs in error desired that the court should put to the jury, any error in the choice of issues submitted, in the denial of those asked for, or in the criticisms upon the obscurity or insufficiency of the answers.

The questions elicited and the answers made a case which, under the pleadings, enabled the court to render judgment upon the case made by law and facts. They were not so framed as to lead the jury to answer for one side or the other, or to show the slightest partiality.

In substance, the jury say that Atkins & Tumlin made a contract with Pace for the land at a certain price; that they paid but a small fraction of it; that Slade & Etheridge paid the balance, amounting to $4,536//» ; that a contract was made that Atkins & Tumlin allow Pace to make titles to Slade & Etheridge, with the understanding that Slade & Etheridge hold the titles as security for their debt and give Atkins & Tumlin bond for titles on payment of it; that Slade & Etheridge sold the land which brought the money into court to Tumlin, and Tumlin paid nothing on it; that the executions which sold the land were for this purchase money; that the sale was by bond for titles; that the deed to Tumlin was filed in the clerk’s office before levy; that Atkins & Tumlin bought as partners from Pace, and nothing on these executions has been paid. The additional fact that the land had been divided by themselves between Atkins and Tumlin was not a contested or disputed matter.

These facts, found by the jury, make a very clear and unambiguous redital of all that transpired necessary to show that these executions were for purchase money, and that Slade & Etheridge were entitled to the fund raised by the sale of the land.

2. Counsel for plaintiff in error, however, say that many of these answers are not supported by the evidence. There may be some conflict in respect to the payment of all which the jury found Slade & Etheridge paid, in the matter of applying cotton furnished by Atkins and Tumlin, but we think that the weight of evidence sustains the finding. If it does not preponderate for the verdict, but there is enough to support it, with the weight of the judge’s approval of it, we cannot legally overturn it. Really it becomes burdensome to reiterate a ruling so well settled by this court.

3. That the decree does not follow the verdict and has no evidence to support it, or is contrary to the weight of evidence, or is contrary to law, is neither of them cause for a new trial before the jury. Tliey all go to motions or exceptions concerning the decree; none of them to error in the verdict or cause to set it aside.

4. The requests to charge the jury were properly refused. In so far as they lay down the principle that it is necessary in suits upon notes given for land and judgments thereon, to specify or declare a lien thereon on the face of the declaration and judgment, in order to sell the same under execution by filing a deed for the land with the clerk under section 3654 of the Code, otherwise there is no superior lien for purchase money, they do not embody the correct law, or the practice thereunder, within our knowledge. If there be a contest for the money raised by the sale, then it must be shown that the judgment is for the purchase money, and that the deed was made, filed and recorded, and there had been a bond for titles, but the proof thereof may be made aliunde the face of the judgment or the pleadings on the note sued. Oases where this court has required the specification of the lien, etc., are cases of trusts or other liens under other sections of the Code, and not under section 3654 for purchase money in cases of bonds for title. 59 Ga., 104; 62 Id., 183: 65 Id., 417; 56 Id., 138; 68 Id., 269; 63 Id., 477.

5. The third and fourth requests, it strikes us, mixed law and facts so confusedly as to have misled the jury, and were properly refused. The fifth related to ordinary rules about the credit and force to be given to testimony, and those matters were sufficiently explained in the general charge. The other four did not apply to or elucidate the simple questions of fact to be settled by the jury, and there was no error in declining to grant the new trial because they were not given.

6. There certainly is no error in the charge that,£C In the first place, were the executions of Slade & Etheridge for the purchase money of the property sold that brought this money into court ?” And if so, other specifications of error in the same ground cannot be considered; though if considered at all, they would show only general complaint of the incompleteness of the charge, with a reiteration of the refusal of requests before complained of; and this disposes of the sixteenth ground of this motion.

7. The instruction a debtor, when he sent money or cotton to the creditor, could control its application by directing the debt he wished paid, but if he did not, then the creditor could apply it where he wished among the debts of the debtor to him, is familiar law, and we do not see how it did or could mislead the jury, which disposes of the seventeenth ground.

8. The eighteenth complains the answer of the jury, and has been disposed of.

9. The nineteenth goes to the decree, and not the verdict, and is no reason for a new trial of facts by the jury.

10. The 20th and 21st grounds repeat the charge of error in the court in ruling that the j udgments in favor of Slade & Etheridge against Tumlin are valid against contesting creditors, as also the executions issued thereon. The 20th specifies no reason why they are not valid, and the 21st repeats the ground taken in the requests to charge about the specifications necessary in the declaration and judgment to secure the lien for purchase money already considered and determined. The 22d refers to error in the decree, which, we repeat, is no reason for trying facts before the jury again.

11. The 23d and 24th grounds object to the entries of the sheriff and clerk upon the executions, showing the record of the deeds, advertisement, etc., in accordance with and fulfillment of section 3654 of the Code. We can see no error therein.

12. The value of the lands was not pertinent. The question was, is the judgment for purchase money? If so, the land must pay it, if it brings the money to do it, whether the value be great or little. So there is nothing in the 25th ground which complains of the exclusion of testimony as to its value. The 26th and 27th grounds complain that the court erred in admitting evidence about iiens because irrelevant and secondary, but what those iiens were, to what extent, and whether the testimony complained of hurt or not, nowhere appears in the ground. Surely no new trial ought to be granted on a ground which does not show hurt to the plaintiff in error, to some extent at least. The 28th ground is based upon the exclusion of evidence of value, or what Atkins would have sold the lands for under any circumstances, which has already been virtually decided, in a former part of this opinion, not to be relevant to the issues. The 29th ground is upon the same point, varied a little in the question put.

13. The 30th and last ground of the motion is in respect to a misunderstanding of two jurors touching the answer to one question, founded on depositions after their discharge. Jurors cannot impeach their own verdict.

14. Another point was perhaps made, at least it was argued before us by both sides, and therefore we consider it. It is that one of these judgments was invalid, because rendered by the court without a jury, not on an unconidi-. tional, but a conditiona1, contract. We think these notes are unconditional contracts in writing. Code, §5145. No issuable plea was hied, and the jury’s verdict would have been a mere formality.

15. In considering the whole case, we cannot conclude otherwise than that the judgment upholding the verdict is right. The facts found are supported by evidence. If so, Slade & Etheridge are entitled to the fund, and the judgment or decree awarding the money to them is right. It must be borne in mind that these issues on money rules against the sheriff, when creditors contest for their respective rights and priorities of lien, are in the nature of equitable proceedings, and should be determined accordingly ; and no irregularities should defeat the real equities of the parties and justice of the case. So looking at this case, as-developed by all the facts, it seems clear to us that equitable results are reached by the verdict and decree, and that, they should stand.

Judgment affirmed.