Morgan v. Sims & Nance , 26 Ga. 283 ( 1858 )

By the Court.

McDonald J.

delivering the opinion.

[1.] My biothers Lumpkin and Benning are of opinion that the presiding Judge in the Court below, erred in rejecting the sayings of Tomlinson, at the time the Sheriff went to levy the executions. They consider all the sayings of Tomlinson as admissible in evidence, as part of the res gestase. I think that the evidence of what he said, ought to have been confined to his orders to the clerks.

The plaintiff in execution was endeavoring to prove possession of the property by the defendant as evidence of his title. The stock of goods was levied on at that time. Mimss the defendant, and Tomlinson, the claimant, were both in the store at the time, and to determine whose was the title, it was necessary to show whose conduct gave evidence of ownership, and the claimant’s orders to the clerk ought to have been received for what they were worth, for that purpose. The declarations of Tomlinson, in favor of his own title, whether in or out of possession, whether at the time of the levy or at other time, according to no rule of law, according to my view of the law, could be received to support his title. Whatever he may have said in disparagement of, or qualifying his title, would be admissible.

If it be admitted that Mims was in possession at the time, what he said in disparagement of his title was admissible, otherwise, not. But this testimony had reference to the stock of goods only, which was not found subject to the execution. It, perhaps, may have an indirect influence on the title to the lot.

[2.] We think the Court decided correctly on the motion to dismiss the levy, on the ground that the onus was not changed. On the week before the Court at which the judgment was obtained, the defendant was in possession of the property, and had been for six or eight years. The suit must have been pending, and the evidence was certainly sufficient to refer the question to the consideration of the jury, if the sale was made to hinder or-delay creditors.

[3.] This is a contest between a creditor and a person claiming to be the bona fide purchaser of the property levied on, from the debtor. And the question here is as to the lien of the judgment on the property, and the time at which the lien attached. There is a difference as to the lien of a judgment against a purchaser, and the lien of judgments against judgment creditors. If the purchaser be not chargeable with fraud of any sort, he takes a good title to the property, if purchased before the judgment. The statute creating the lien is, that the property of the defendant is bound from the signing of the first judgment. Cobb, 494.

By the Act of 1810, judgments obtained in the several Courts are to be paid according to their respective dates. Cobb, 496. By the Act of 1822, all judgments signed on verdicts rendered at the June Term of the Court, are to be held and considered of equal date, and no execution founded on judgments obtained at the same Term, shall be entitled to any preference by being placed first in the Sheriff’s hands. The judgment cannot relate back so as todo a wrong, or lay a charge upon a person who is not a party. We think, therefore, that the Court erred in his charge to the jury, that the judgment related back to the first day of the Term. What we have said in respect to the charge of the presiding Judge, objected to in the third ground of the motion fora new trial, applies equally to that excepted to in the fourth ground in that motion.

.We think there is no valid objection to the verdict on the score of uncertainty.

As the cause goes back for reasons already assigned, we will not remark specially on the other grounds, further than to say that we know of no rule of law that the verdict infringes, and we would not be disposed to interfere with the facts under the evidence before us, as the jury has passed .upon them.

Judgment reversed.