Dowdell v. Neal , 10 Ga. 148 ( 1851 )

By the Court.

Nisbet, J.

delivering the opinion.

[1.] A levy upon personal property is, prima facie, a satisfaction. That is, it is a satisfaction so far as to throw upon the plaintiff, the burthen of showing, either that it is insufficient, or that the proceeds have been applied to the satisfaction of prior levies, or that it was otherwise unproductive, and made so without fault of the plaintiff or the Sheriff. 6 Geo. R. 395. 8 Geo. R. 327. With these limitations it extinguishes the judgment, the defendant is discharged, and it has no right of claim upon funds of the defendant for distribution, as against other fi.Jas. Whilst this is true, it is not true that when a levy is made upon personal property, and simultaneously a levy upon real property, and the real property is alone sold, that the purchaser gets no title. Such were the facts in this case. The question is, whether the sale of the land, under such circumstances, conveyed a title to the purchaser. The lien of the judgment is general — it attaches upon all the property, real and personal, of the defendant, from its date. There is no law which directs a levy upon the personal estate first, to the exclusion of the right to levy on the lands. Theplaintiff may go upon either at his election, or he may go upon both, as he did in this instance. A levy upon either, or both, will be a legal levy. If the plaintiff elects to go upon the personalty, and that alone, he is subject to the rule above laid down. If he has caused a levy on personalty and lands at the same time, the execution is competent to sell either. Its functions extend to both, and if the land alone is sold, it is as if the land alone was levied upon. The purchaser takes the title which the defendant has, unaffected by the contemporaneous levy on the personalty, just as he would take it, had no levy been made on the personalty. Nor is there any limitation upon the power of the Sheriff to sell, under such circumstances. The levy and the sale are legal. Whether the Sheriff has, or has not, made himself responsible for an excessive levy, is a matter foreign to the purchaser and his title. Whether, if there had been a levy on personal property alone, and afterwards a levy and sale upon real property, the purchaser would or would not be put upon accounting for the first levy, before his deed could go in evidence, and his title be sustained, is a question not made, and upon which, I express no opinion. In this case, the execution and deed were properly admitted.

[2.] The two several charges of the Court as to the credibility of the witnesses, do not appear to us to be at all objectionable. The Court said, first, that “ if two witnesses testified one way upon a material.point, and one other witness testified differently, or m conflict with the two, all of them being otherwise unsuspected and entitled to equal credit, the Jury were bound to believe the two rather than the one.” The counsel for the plaintiff in error construe this charge as asserting that the rule of credibility is numbers, and that because two witnesses testify one way, and one in conflict, the Jury must believe the two and discredit the one, without regard to any thing, other than the fact that there are two against one. If the Court had laid down any such rule, it would have been erroneous. The Jury may consider the circumstances in which witnesses are placed — their means of knowledge— their connection with, or relationship to the parties — their character for truth and veracity, when that is' impeached — and indeed, anything affecting their credibility; and thus considering, they may believe one against two or more. The Court laid down, as we believe, no such rule, but came fully up to the requirement of the plaintiff in error. He instructs the Jury, that if the three are unsuspected, and of equal credibility, then they are to believe two rather than one, who is in conflict with them. He leaves the matter of credibility open to them. He does not prohibit them from looking to the circumstances and conditions which add to, or detract from their credibility. He asserts no rule of credibility, drawn from numbers, irrespective of these circumstances and conditions, but instructs the Jury, that if, after taking them into view, the witnesses are all of equal credibility, they must believe two rather than one. To this rule, we do not understand" the counsel themselves as objecting.

The Court further instructed the Jury, “ that if one witness testified to a material point, and another swore, differently, and •in conflict with the other, and there were circumstances proved in the case, corroborating the testimony of one of the witnesses, both being otherwise equally entitled to credit, the Jury were bound to give more credit to that witness who wTas corroborated by circumstances.” The objection to this charge is, that there was nothing in the case to warrant it. We are not sure of th-at. Upon a vital point in the case, to-wit: the exact extent and meaning of the agreement between Pou, the purchaser, and Whitehurst, the defendant in execution, relative to the redemption of the property, there was conflicting evidence. Several witnesses were sworn. One was the purchaser, Mr. Pou, testifying to his understanding of his own agreement -with Whitehurst; and another was the agent of Whitehurst, Mr. Giddens, who testified differently as to what the agreement was. It was a case where the Jury would be obliged to look for corroborating circumstances, because of the conflict, and for this reason the instruction properly grew out of the case. What harm could it do ? The Jury could not be misled by it. It was just as likely to operate favorably to the plaintiff in error, as to the defendant.

[3.] Nor do we find any error in the instructions of the Court touching the agreements, about which there was some contradictory evidence. The plaintiff in error sought to subject the tavern to the payment of his execution, upon the ground, that by an agreement between Pou, the purchaser, and Whitehurst, the defendant in execution, the latter had acquired such an interest in it, as made it subject to levy and sale. The claimant relied upon a deed made to him by Pou, the purchaser, in pursuance of another and subsequent agreement enteredinto between himself, Pou, Whitehurst and others. In relation to both agreements, evidence was submitted to the Jury. Giddens’ evidence was to the effect, that Pou had agreed with Whitehurst, that he, (Whitehurst,) should redeem without regard to time, and that in pursuance of that agreement, he (the witness,) as the agent of Whitehurst, had paid Pou some $900 of the sum at which Pou had bid off the property, and which sum Whitehurst was to refund. Whereas, Pou testifies that he agreed that Whitehurst should redeem, by paying him the purchase, money by a time certain; that the $900 paid by Giddens to him, was after that time, and was received by him as Giddens’ money, and not as Whitehurst’s, and that afterwards he made another and different agreement with Whitehurst, Giddens, Neal and others, by virtue of which he was to be paid the whole of his purchase money, and was to convey to Neal, and that the money paid by Giddens was applied, that is, retained by him, as a payment of so much of the purchase money, under and by virtue of this second agreement, and that the balance of his purchase money being paid to him under the second agreement, he conveyed the tavern to Neal, the claimant. This statement is Ml enough for the purpose of the remarks I have to make on the instructions of the Court. Leaving these facts to the Jury, Judge Iverson found himself under the necessity of laying down a rule of law which should govern them, whether they should believe according to Giddens’ version of the matter, or according to Pou’s version. The case had two aspects, and he was constrained to look at it in both, in applying the law. We think he did it fairly, and without error; assuming, as the presiding Judge did, that there was a Contract with Pou and Whitehurst, which was, in part, consummated by the payment of the $900, and which contract was not revoked before full consummation, the law suited to such a case was well laid down. The Court said, “ if the Jury believed from the evidence, that Pou accepted the $900 of Whitehurst or his agent, in part payment of the tavern, and with the understanding that Whitehurst might redeem, by paying back the purchase money with interest, then Pou, (notwithstanding the agreement was without consideration,) was bound to re-convey to Whitehurst, on the payment of such balance, if tendered within a reasonable time;” that is to say, the payment of part (in redemption) of the purchase money, and a subsequent payment of the balance would entitle Whitehurst to a deed; and if so, would, in accordance with Pitts a?id Bullard, create in Whitehurst, such an interest as would be liable to levy and sale. The principle settled in that case was this : “If A buy la'nd from B, and pay the entire consideration or purchase money, and take an unconditional bond for titles, and there is nothing more for him to do to consummate the contract, B is a mere trustee, and thé legál estate rests in A, and it is subject to levy and sale under an execution and judgment against A, at law.” 3 Kelly, 5. With this part of the charge, we do not understand the plaintiff in error to be dissatisfied. It was in his favor.

His honor, the presiding Judge, proceeds to say: “ But if Pou received said $900 of Giddens, as his money, and not in part payment for the tavern, then Pou would not. be bound thereby, by any subsequent offer of Whitehurst, to pay the balance.” That is to say, if there was an agreement between Pou and Whitehurst, that the latter should redeem the tavern, and he should offer to pay only a part of the purchase money, Pou would not, by such offer, be bound to convey to Whitehurst, and the title would not so pass to Whitehurst, as to render the tavern subject to levy and sale. To make it so subject, the payment of the purchase money — the consummation of the contract — is a condition precedent. There can be no doubt of the soundness of this proposition of the Court. The Court instructed the Jury farther, as follows: “ If, in either event, (that is, whether the $900 was paid by Giddens, as the money of Whitehurst, in pursuance of his agreement with Pou, or as Giddens’ own money,) if Pou, Whitehurst and JYeal, subsequently made an agreement, by which Pou was to convey said, property to JYeal, and JYeal to tra?isferthefi.fa. against Giddens, Heard and others, to Pou, and Whitehursttopayto Pou the $1028, {the purchase money which Pou paid,) for which Pou was to satisfy said fi. fa. that such would be a valid agreement, and would not render said property subject to the plaint-if’sfi.fa.” This charge is strenuously resisted by the plaintiff in error. We cannot see that his objections to it are well founded. In one of the events named by the Court, that is, in the event that the Jury should find that the $900 was paid to Pou as Giddens’ own money, it cannot be doubted but that the law was administered. If that be true — that is, if the $900 was paid as Giddens’ money, (as Pou testifies,) and not as Whitehurst’s, in accordance with the first contract — then there was no execution, even in part, of that contract, until the second was made. It was certainly competent for Pou and Whitehurst, having entered into an agreement, and that agreement not being executed,even in part, and, according to' Pou’s testimony, the time for executing it having transpired, either themselves, or in connection with Neal and others, to make a new contract in relation to the same subject matter, without prejudice to third persons. I apprehend that the complaint of the plaintiff in error grew out of the other event, put to the Jury by the Court. That event to be found by the Jury was, that the $900 was paid as the money of Whitehurst, and in part execution of his contract with Pou. Even then, the Court says, it was competent for Pou and Whitehurst, with Neal and others, to enter into a valid contract, -which would supersede the first contract. The ground taken by counsel for plaintiff in error, I understand to be this: If there was an agreement entered into between Pou and Whitehurst, by virtue of which the latter was allowed to redeem the tavern, by paying to the former the $1028, at which he bid it off, and the latter did, in fact, pay $900, in pursuance of that agreement, Whitehurst thereby acquired an interest in the tavern, which would make it subject to levy and sale, notwithstanding a new and wholly different contract was entered into by them, before the balance of the $1028 was paid. By all the testimony, the whole of the purchase money ($1028) was not paid to Pou until after the new contract was made. Is this position sound ? It is not, according to Pitts and Bullard. By that leading case, the contract must be executed — nothing must remain to be done —before the purchaser can acquire such title to the property as will make it liable at law to execution. He must pay down the entire consideration. At any time before this is done, the parties may come together and annul or vary their contract. Before this was done in this case, they did make a new and different contract — a contract by which Pou received back his bid for the tavern, ($1028) — Whitehurst got a satisfaction upon a judgment against him and others, held by Neal — and Neal got a title to the tavern. When this last contract was made, Pou had not parted with the title to the tavern; he could sell it to whomsoever he pleased. The old contract never having been executed, Whitehurst had acquired no title; and if he had acquired an equitable interest, he relinquished that. It was his right, under the Act of 1818, to pay Neal, to the exclusion of Dowdell. And surely Neal had a right to buy Pou’s property: What right has Dowdell to complain of all this ? Pie wás no party to either of these contracts. He had no interest in this tavern, for it had been sold as Whitehurst’s property under execution, and Pou bought it. He was the owner; Dowdell could acquire no right to re-sell it, but by a re-purchase on the part of Whitehurst, End that he did not make. It was wholly immaterial whether the $1028 was paid to Pou before or after he made a deed to Neal; the payment and deed was part and parcel of the contract. If the money was paid, and the deed executed in accordance with it, it does not matter even that the $900, which had been handed to Pou, was recognized by him as part payment. If Dowdell has been injured at all, it is damnum absque injuria.

[4.] This Court has already decided the last question made in this record. The lien of an older judgment do'es not attach upon the property of the defendant, after it is sold under a junior judgment and execution. The older judgment creditor must look to the fund. Of course, under such sale, the purchaser gets a good title. Harrison and others vs. McHenry, (9 Ga. Rep. 164.)

Let the judgment be affirmed.