166 Ga. 228 | Ga. | 1928
The pleadings and the evidence make the following case: Creswell borrowed money from one Davis. When he failed to pay, Davis sued the debt to judgment. Execution issued and was levied upon the land of Creswell. The land was sold at sheriff’s sale, and Bryant Hardware Company became the purchaser. Prior to the sale the hardware company entered into an agreement with Davis, by which it contracted to buy the land at sheriff’s sale and pay Davis the amount due him. Davis agreed to allow the hardware company ninety dajs in which to pay him all except a $1000 cash payment. This agreement was not known to the defendant in fi. fa. until after the sale. The purchaser was not put in possession immediately. After the lapse of several months the purchaser filed a petition in the superior court of Whitfield County, praying that the sheriff be required to dispossess the defendant in fi. fa. and put the purchaser in possession. The judge signed and issued, in Murray County, a rule nisi requiring the sheriff of Whitfield County and the defendant in fi. fa. to show cause in the latter county, on a named date, why the order prayed should not be granted. On said date the judge passed an order requiring the sheriff to dispossess defendant in fi. fa. and put the purchaser in possession. Thereupon defendant in fi. fa filed a petition to enjoin the sheriff and pur
1. The judgment regularly rendered between the creditor and debtor, until set aside for.fraud, accident, mistake, or other cause, was conclusive and binding between them as to the amount of the indebtedness. The agreement alleged to have been made between the parties therefore was without consideration and not binding. Civil Code (1910), § 5943; Haynes v. Armour, 146 Ga. 832 (92 S. E. 648).
2. The fact that a rule nisi was issued upon the purchaser’s petition in a county other than the one wherein the land lay would not render the judgment thereon void, where the petition and rule were duly filed in the proper court and the judgment had was in the proper court.
3. It follows from the above rulings that the court did not err in refusing an injunction and in ordering the sheriff to dispossess the defendant in fi. fa. and put the purchaser in possession.
Judgment affirmed.