8 Ga. 258 | Ga. | 1850
By the Court.
delivering the opinion.
The plaintiff in execution, Judge Colquitt, sold a body of land to the defendant in execution, Dr. Thomas — talcing his notes for the purchase money. He sold to Harrison & Williams, and they to the claimant, Mr. N. Harrison. Colquitt sued and obtained judgment against Thomas, on his notes, for the purchase money, but not until after the sale of the lands to the claimant. A levy was made on the lauds, and a claim interposed by N. Harrison, the last purchaser, and all the questions brought up, were made on the trial of the claim.
To assert this lien, it is necessary, in England, to go into Chancery. So, also, it has been considered and held in this State. Can it be set up, in an issue founded on a claim? We consider that it cannot, without a departure from a practice long acquiesced in — without a violation of the necessary rules of pleading, and without an abandonment of principle. Our proceedings before a Court of Law, upon claims, are sui generis, and partake of an equitable character. So far, however, from deriving from that fact an argument in favor of this new practice, I derive therefrom, the reverse inference. If, in a special case, the Legislature has thought fit to clothe a Court of Law with equitable powers, the jurisdiction is a special grant, and is to be confined to the cases in which it is authorized. We have a Court of Chancery, distinct from a Court of Law, differing from it in the principles upon which its jurisdiction is founded — in its mode of procedure — and in the relief which it affords. Until the Legisla
“ And now, at this Term, comes the plaintiff in execution, and alleges that the property levied upon by his fi. fa. aforesaid, is subject thereto; and for this truth, he tenders this issue, and puts himself upon the country.
“ W. T. COLQUITT, Plaintiff.
“ And the claimant denies that the property is subject, and doeth likewise.
“ THOS. A. LATHAM,
“DAVID IRWIN,
“ WM. EZZARD,
“ Attorneys for claimant.”
The record shows no more than this. Upon this dangerously brief and pregnant issue, what is to be tried 1 The law and the facts as to the liability of the property to the execution. The plaintiff asserts that the property is subject to his execution; by which he means to say, that it belongs to the defendant in execution, and, therefore, the lien of his judgment attaches upon it. The claimant denies this upon the record, and the war begins pell-mell. If it should appear in proof, that the plaintiff’s judgment is older than the claimant’s title from the defendant in exe
The Court is the exclusive judge of the law in civil cases. As the Court may not interfere with the evidence, so the Jury may not interfere with the law. The Jury are bound to obey the law, as given in charge to them by the Court. I lay this down without any qualification. They are bound, according to the organization of our Courts, to apply the evidence, under the law, as administered to them by the Court. They have no right to sit in judgment on the law. Hence, if the Jury find contrary to a correct rule of law, given them in charge, the verdict will be set aside, and a new trial awarded. Nay, I go farther. If an erroneous rule of law be given them, they must abide it. The correction of the error in the law is not with them ; it is a power
If the Jury did not understand the rule of law which was thus imperfectly charged, it could not, of course, become to them a rule of action in their application of the evidence; and the case stood as though there had been no attempt whatever to charge it. If so, the second interrogatory is answered. The plaintiff had not the benefit of the rule of law which he believed, and which the Court held, was applicable to his case; an'd for that Teason, we hold that the manner in which this charge was given, is error. Hall vs. Hall, 6 Gill, & Johns. 386. Selin vs. Snyder, 11 S. & R. 319. 3 Cranch, 298. 3 Blackf. 433. Powers vs. McFerron, 2 S. & R. 44. Smith vs. Thompson, Ib. 49. Hamilton vs. Menor, Ib. 70. Livingston et al. vs. Maryland Ins. Co. 7 Cranch, 506.
As to the testimony of L. B. Watts, we think the Court was right in rejecting it. It was afterwards read by consent, at the suggestion of the Court — he expressing doubt as to the correctness of his decision, and saying, at the same time, in the hearing of the Jury, that it did not amount to much. This remark is made the ground oí an assignment. Without laying too much stress upon every casual remark that may fall from the Court, in communicating with counsel in the progress of a cause, we are of opinion, that whilst this remark, thus made, is not ground for error, it might as well have been omitted.
As before stated, Judge Colquitt having reduced his claim against his vendee,-Thomas, for the purchase money of the Pond-town lands, to judgment, was seeking to subject them. Thomas, pending the suit against him, had sold the lands to a company, known in this record as Harrison & Williams, who sold, pending that suit, to the claimant, Nathaniel Harrison. Colquitt’s judgmentbeing younger than the deed to the claimant, and, also, than the deed to the claimant’s vendors, Harrison & Williams, his effort was to show, that the original sale from the defendant in exe
Examining into these instructions with diligence, we are satisfied, that in more than one instance, the charge of the Court is susceptible of such a construction, as denies to the plaintiff the benefit of certain testimony which, under the law, he was entitled to. Whether, in fact, the Jury did allow the full effect of this testimony, is what we cannot determine; but as their verdict is against the plaintiff, we have a right to presume that they did not. I do not mean to say that, in my opinion, the plaintiff ought to have recovered — I express no opinion about that — I only mean to say, that inasmuch as the instructions of the Court are susceptible of a meaning adverse to the rights of the plaintiff, and inasmuch as the Jury found against him, it is a fair inference that they understood them in that adverse meaning.
1. That the sale, by Thomas, was fraudulent; that is, that it was made to hinder and defeat his debt. He was bound to prove a fraud, in fact. To prove this, he was entitled to give in evidence certain facts — as the pendency of his suit at the time of the conveyance — possession retained by Thomas, and other facts of like character, which the law recognizes as jwrits or badges of
To prove the fraudulent intent of Thomas, the pendency of the suits against him is a competent badge, and in this case ought to have been submitted, with its full effect as such, to the Jury. The fraud, on the part of Thomas, was a preliminary fact, to be established — notice to the claimant and his vendors, of the fraud, could not be established, unless the fraud itself was proven. The pen
In this case, a deed taken after knowledge of the plaintiff’s incumbrance, of Thomas’ insolvency, and of the pendency of the suit — such knowledge being before the payment of the purchase money — would not, necessarily, defeat the incumbrance. That part of the instruction asked is true ; yet it is not true that the deed would be fraudulent in law. I repeat, that the fraud to be proven, is a fraud in fact; and the notice to be charged upon the purchasers, is notice of this fraud in fact. The fraud being proven, and notice of it carried home to the purchasers, they become parties to the fraud, and the law adjudges, then, that their title is not good. The fact of fraud, and the fact of notice, are to be submitted to the Jury. Hence, if the knowledge of the incumbrance, of Thomas’ insolvency, and of the pendency of the suits, be proven, those facts do not, as of legal necessity, annul the deed. I am aware, that the desired instruction assumes that this sale was fraudulent. Let that be so; still, knowledge of these facts, to wit: Colquitt’s debt, Thomas’ insolvency, and the pendency of the suits, does not, necessarily, make the deed to claimant void. Whether void or not, is the issue upon the question of notice, and these facts are submitted to the Jury upon that issue. Upon the requisition in the request, that upon knowledge of these
I do not mean to say, that this rule applies in this case. In the case put by the Court, he says, that the purchaser may go on and take his deed. True, he may; but he proceeds to say, that in such a case, notice would in no wise affect the deed; that is, in a case where a considerable part of the purchase money is paid — • the contract of purchase being complete — the purchaser then receiving notice, before the balance of the purchase money is paid, and before the deed is taken, the deed will in no wisebe affected by the notice. We do not agree with the Court in this idea. The purchaser may go on, in such a case, to take his deed, and as against a prior incumbrance, with notice, it would not avail him in Equity ; and here, we think, he takes it at the peril of its being set aside for notice of the fraud. We mean to say, that in the case put by the Court, at Law, as here, the facts going to show notice of the fraud, may be submitted to the Jury, and to this extent and no farther, we think this charge wrong.
Let the judgment he reversed.