Donkle v. Kohn

McCay, Judge.

1. It would, as we think, be improper for this Court to interfere with the action of the Judge, in his direction of this case, during the vacation, and in his granting the rule nisi under the circumstances as set forth in the record. The whole matter was a question of good faith and diligence on the part of the counsel for the movant. The affidavits are painfully conflicting, and the Judge had special means to assist him in arriving at his conclusion, which this Court has not, since much of what did occur, was under his own observation. It was necessary that the brief of testimony should be approved, before the rule nisi was granted, and the brief filed; and if the Judge was satisfied, as he doubtless was, that it was not the fault of the movant that it was not sooner approved, we see no error of law in his granting the rule nisi, and permitting the brief to be filed. No delay of the cause was produced. The rule nisi would, perhaps, have been made returnable to the next term at any X’ate; and as this was the coui’se the case took, we will not interfere. See Goodwin vs. Hightower, 30 Georgia, 249.

2. What the course of this witness, during the war, had to do with this ease, we cannot see. Nothing was stated to make these questions pei’tinent. All that appeal’s would, at least, be a mere act, and we know of no rule which 'could make any probable answer to them pertinent. Nor do we think that clause of the Code, which declares that religious belief shall go only to the credit of a witness, justifies the question asked, as to the witness’ belief in Christ as the Saviour. The section of the Code, 3797, simply inteifds that the religious belief which made a witness incompetent at common law, shall, in Georgia, go only to the credit of the witness. Has it ever, at least in modern times, been contended that a Jew was incompetent? That a want of belief in Jesus, as the Saviour, was a ground for the exclusion of a witness? We think not. A belief in a God, and in a future state of rewards and punishments, has, by some Courts, been held necessary to render a witness competent. But a Jew is competent at common law.

3. Our statute, Code, section 3601, expressly provides that the sheriff shall not, to put a purchaser of land at a sheriff’s sale in possession, turn out anybody but the defendant, his heirs, or his tenant or assignee, since the judgment. Was Khon either of the class here alluded to ? He held by virtue of a sheriff’s sale, before the judgment on the mortgage, and in no fair sense can he be said to hold as the assignee of McKenzie at all. The sale at which Morris bought, was a sale, whether legally or not, of all McKenzie’s right, and the purchasers were clearly holding adversely to the mortgage. Had the mortgagor taken a decree in the equity cause against Morris, perhaps Khon might be so bound by that decree, as that he could have been turned out to put in a purchaser under the decree. But this was not done. The sale was simply by virtue of the mortgage, and Kohn held adversely to that. Whether his title Avas good against the mortgage, is another question. It aves not in the power of the sheriff to oust him by the mere sale. The sheriff can only turn out the defendant, and those Avho are privies to the judgment. We do not go into the questions made upon the sale under the mortgage^, fa. Admitting that sale to be a good one, admitting that Printup stood in such a situation towards Kohn, as to free that sale from the objections made to it— we do not think the sheriff was authorized to turn Kohn out by virtue of it.

4. That a tenant cannot attorn to one holding title adversely to his landlord, will not be doubted. This is clearly the common law, and is affirmed in our Code. We do not see that the ease is helped any by the fact that the adverse claimant comes with the sheriff at his heels. A sheriff may be a trespasser, as well as a private person, and the law gives a remedy against him as well as against private persons. We do not go into the evidence. There was some evidence that the attornment to Printup was with Kohn’s consent, and did the case turn wholly on that, we are not sure but that the verdict of the jury is sustainable under the evidence. But, in the view we take of the ease, we do not think the law was put fairly to the jury on the other points, and we affirm the judgment granting a new trial.

Judgment affirmed.