11 Ga. 277 | Ga. | 1852
By the Court.
delivering the opinion.
This is a writ of error to a claim case, tried in Walker Superior Court, October Term, 1851. It seems that sundry fi. fas. issuing from a Justice’s Court, at the instance of Marsh & Breers, against John Mahan, and James Russell, security, were levied on lot of land, No. 213, in the 12th district and 4th section of what was originally Cherokee, but now Walker County, which was claimed by William Dougherty. 'On the trial, the plaintiffs tendered in evidence, the original executions, with the entries, the reading of which to the Jury,, was objected to, on the ground that they are satisfied in full. There had been divers levies of real and personal property made under these fi. fas. A tract of land had been sold for enough to discharge them in full, principal, interest and costs ; and a receipt to that effect had been indorsed by William R. Breers, one of the plaintiffs. Personal effects, too, had been seized at different times.
To rehut the entry of satisfaction by the officer and' the party, the plaintiffs relied on an order passed' by the Magistrates of the 71st district G. M. to which the executions, were, by law, returnable, to the effect that the credit by one of the plaintiffs was a nullity, no actual payment having been- made; aud it was therefore ordered, that the fi. fas, be re-opened and proceed against the defendants,, as though no such entry had been made. All the other levies were accounted for except one, by proving that they had been dismissed by the attorney of the plaintiffs, on tlie ground that the Constable not having given bond and security, and taken the oath of office, as prescribed by law,
The Court overruled all the objections to the testimony, and directed it to be submitted to the Jury, which was done, and thereupon the claimant excepted.
To rebut the equity in favor of the claimant, as an innocent purchaser, the proceedings in the action .of ejectment were suffered to be introduced in evidence, by which it was intended to charge him with notice that the executions were not in fact paid, although returned satisfied Without stopping to inquire how far the party to the execution, who bought this property, is entitled to the benefit of this equity, it would seem that it was competent to shew that he acted in fraud of the law and in bad faith, in forcing a sale of the defendant’s land, when he was in possession of personal property sufficient to satisfy the judgments. Would not the purchaser be permitted to ask the aid of Chancery to restrain the plaintiffs in fi. fa. from disturbing his bond until the personal property in the hands of the defendants was exhausted ? If so, then this testimony is admissible.
The principle involved in this question, has frequently come under review, upon applications by officers, Sheriffs and Constables, to amend theii returns, and the uniform doctrine has been that the rights of third persons could not be prejudiced ; much less will the party himself be permitted to amend his own entry, so as to affect the interest of innocent purchasers.
In Howard vs. Turner and Buck vs. Hardy, cited in Means vs. Osgood, (7 Greenl. Rep. 146,) the Supreme Court of Maine say: “ In each of these cases we allowed such amendments to be made, but the litigation was between the original parties, and it clearly appeared that no conveyance had been made of the property, on which the amended return would operate; and that no one would be affected by such amendment, except the parties. This, we chink, “ continues the Court, “ is the extent to which we can go. To permit a material change in the return, of a fact, whereby the rights of a bona fide purchaser, without notice, are to be wholly defeated, would be a laxity in practice, too unsafe to be permitted.”
And so we say. Third persons refer to the records, to ascertain the condition of a debtor, and find that all the judgments against him are discharged, both by the return of the proper officer, as well as by the receipt of the creditor himself, filed with the papers. The lien on the defendant’s property is extinguished; and ignorant of any existing equities, he buys for a valuable consideration, what he believes to be, and what apparently is, a good title. It would be unreasonable, by any subsequent alteration of the state of the facts, that the title thus acquired in the interval should be prejudiced. This negligence, or whatever else you may call it, on the part of the plaintiffs or the officers, must not be allowed to be repaired at the expense of others.
This point was directly made and decided, in Taylor vs. Ranney, 4 Hill's N. York Rep. 617. A fi. fa. having been returned satisfied, an entry was made on the docket, of the judgment,
“ The terre-tenants,” say the Court, “ purchased at a time when the judgment had ceased to be a lien, and it would be a great hardship upon them to give such a retroactive effect to the amendment which the Sheriff was afterwards permitted to make in his return, as would overreach and defeat their title. It was the fault of the plaintiff, that the original return was wrong. They ought to bear the burden instead of casting it off upon bona fide purchasers. If the Sheriff was guilty of misconduct, the plaintiffs may have an action against him ; and 'it is much more reasonable to confine them to that remedy, than it would be to allow them to visit the fault upon innocent third persons.
A different decision, we are satisfied, would be productive of great mischief. And we do not find a ease where an amendment of this sort, whether of the act of the officers, or of the party, or both, will be allowed to operate so as to defeat the rights of third persons. In every conflict between litigants, under such circumstances, the Courts have always restrained the tenant’s title, derived from the judgment debtor.
Let the judgment be reversed.