Bradshaw v. Gormerly

54 Ga. 557 | Ga. | 1875

Jackson, Judge.

Bradshaw and other plaintiffs, a'mong them William D. Chapman, obtained judgment against William Hall; executions issued thereon, were placed in the sheriff’s hands, and levied upon certain land.- Gormerly claimed the land, and the cases.were all pending in Talbot superior court. The case of Chapman was tried, and the property found subject. Thereupon the claimant, Gormerly, resolved to bring that case to this court by bill of exceptions; and it was agreed by counsel that the other claim cases, Bradshaw’s among the rest, then ready for trial, should not be tried, but should stand continued until the case brought to this court was determined, and all should abide the decision here. Counsel for plaintiffs and for claimant all agreed to this; and claimant, Gormerly, himself stood by in person and assented thereto. This court affirmed the judgment below, the property was sold, and the money brought into court for distribution. Gormerly withdrew his claims in the other cases, and now claims that the money arising from the sale of the land should be paid to him and not to the plaintiffs. On the trial of the traverse by Gormerly, of the petitions of the plaintiffs for the fund, the plaintiffs offered to prove the agreement of counsel referred to aboye .and the assent of Gormerly thereto, which the court refused to allow. They then offered to show that the deed of Hall to Gormerly was fraudulent and void as to them, without consideration, and a mere contrivance to defraud, hinder and delay creditors. The court refused to permit them to do so. The errors assigned are, that the court erred in these refusals and in ordering the fund paid to Gormerly in preference to Bradshaw and the other plaintiffs in like condition. We think the plaintiffs in error right on each of these assignments of error.

1, 2. The withdrawal of the claims by Gormerly, on the return of the remittitur from this court, was in violation of his agreement. He himself assented to what his counsel agreed, and it would be to permit a gross fraud to allow him to repudiate his bargain after he had made it and lost the case here.' If he had not assented in person, he would have been concluded by the acts of his counsel; for the agreement was executed by plaintiffs not trying but continuing their cases, and the claimant is estopped from saying that the agreement was not in writing. The plaintiffs were entitled to their verdicts on the return of the remittitur; &ná having been prevented from taking them by the act of Gormerly in withdrawing his claims, they lose no rights on the fund which is the proceeds of the land that the agreement allowed them to subject.

3. For the same reason, because of the fraudulent withdrawal of the claims, the plaintiffs were entitled, on the trial of the traverse on the money rule, to show the fraudulent transfer or deed of Hall to Gormerly. Indeed, the rule being an equitable proceeding, they would have been so entitled independently of any agreement, or the violation of any, to go into the whole fraud between the defendant and claimant on the.issues made.

4. We hold, therefore, that the court erred in ordering the money, or any part, paid to Gormerly, and think just the contrary order should have been passed on the admissions contained in the record.

Judgment reversed.