Duke v. Ayers, No. 5429

No. 5429 | Ga. | Jan 11, 1927

Hines, J.

(After stating the foregoing facts.)

The bill of exceptions recites that the court erred in admitting in evidence the motion to amend the decree in favor of E. Duke against the estate of Amanda Duke, together with an acknowledgment of service of this motion by Gf. S. Duke, as executor of Amanda Duke, and the judgment of the court amending this decree, upon the grounds that this evidence was immaterial and irrelevant, and because there was no pleading setting up these proceedings as an estoppel against the plaintiff in the present case. It does not appear from the bill of exceptions that these objections to the admission of this evidence were made at the time the evidence was offered and admitted. It is now a well established rulé of practice that an assignment of error in a bill of exceptions, based upon the admission of evidence, should state the objection made to the evidence, and that such objection was uged at the time the evidence was offered; otherwise, no question is raised for determination. Cooper v. Chamblee, 114 Ga. 116 (39 S.E. 917" court="Ga." date_filed="1901-11-07" href="https://app.midpage.ai/document/cooper-v-chamblee-5571196?utm_source=webapp" opinion_id="5571196">39 S. E. 917); Butts v. State, 118 Ga. 750 (45 S.E. 593" court="Ga." date_filed="1903-10-24" href="https://app.midpage.ai/document/butts-v-state-5572821?utm_source=webapp" opinion_id="5572821">45 S. E. 593); Simmons v. State, 126 Ga. 632 (55 S.E. 479" court="Ga." date_filed="1906-11-09" href="https://app.midpage.ai/document/anthony-v-state-5575346?utm_source=webapp" opinion_id="5575346">55 S. E. 479); Simmons v. State, 138 Ga. 137 (74 S.E. 1000" court="Ga." date_filed="1912-05-14" href="https://app.midpage.ai/document/north-atlanta-land-co-v-portness-5578439?utm_source=webapp" opinion_id="5578439">74 S. E. 1000). So we can not say that the court erred in admitting this proceeding.

This evidence being in, we must give to it all such force and effect as it is entitled to. In his petition the plaintiff alleged that the judgment obtained by E. Duke against the estate of Amanda Duke had been fully paid off and satisfied by him, and that the same should be canceled of record. In their answer the administrators of Duke denied the allegation that this judgment had been fully paid off and satisfied by him. Dpon the issue of the payment vel non, the plaintiff introduced evidence tending to establish the payment of the judgment. In reply the defendants introduced a motion made by Duke to amend his said judgment. This motion recites that the judgment had not been paid by plaintiff, who was the executor of Amanda Duke, nor by the legatees, of whom the plaintiff was one. In his answer to this motion the plaintiff admitted this statement to be true. The judgment was amended as prayed. This proceeding was had, and this admission was made by the plaintiff subsequently to the time when he claims to have paid said judgment in full. Independently of its admissibility for the purpose of establishing an estoppel, this evidence was admissible to show the non-payment of this judgment. Furthermore, these proceedings estopped the plaintiff from setting up that he had previously paid off and satisfied this judgment. In the motion to amend his judgment;, E. Duke alleged that it had not been paid either by the legatees under the will of Amanda Duke, or by the plaintiff as her executor. In his acknowledgment of service of this motion, and in his answer thereto, the plaintiff admitted that this statement was true. His answer was filed and became a part of the record in the cause in which the judgment issued. His admission of the non-payment of this judgment was a solemn admission in judicio that the judgment had not been.paid. The court acted upon it and amended the judgment as prayed. By such admission, made in judicio, the plaintiff is estopped from asserting that he had paid off this judgment at a date prior to the making of such admission. Civil Code (1910), § 5736. So we are of the opinion that the court properly refused to grant a temporary injunction restraining the administrators of E. Duke from proceeding with the enforcement of the execution which issued upon this judgment.

It follows from the above ruling, that the execution in favor of E. Duke against the estate of Amanda Duke has not been paid, and that the contention of the plaintiff that it should be canceled for this reason is not well founded, even if the plaintiff is in a position to raise this point and to secure this relief. It further follows from the above ruling, that the contention of the plaintiff that the enforcement of the executions in favor of the bank and Turner against E. Duke should be enjoined, because they have been levied upon lands which he conveyed or caused to be conveyed to said Duke to secure debt which has been fully paid, fails. In consequence of these conclusions, the plaintiff is not entitled to relief against these executions on the above grounds; and if nothing further appeared, he makes no case entitling him to equitable relief.

Does the plaintiff make a case entitling him to any other equitable relief under the facts? He states the facts, and prays that equity take jurisdiction, and that all his rights in the premises be protected. If the deed which he made to E. Duke to lands to which he held the legal title, and the deed which he caused to be made to E. Duke to lands of which he was the equitable owner, were absolute deeds of sale, then he would not be entitled to any relief against the judgments and executions which these parties hold against E. Duke. If these deeds were instruments executed to secure debt, they vested the legal title to these lands in Duke, subject to be defeated by payment of the debt. They vested in Duke legal estates which he could sell, assign, or convey to secure debt. The lands are subject to levy and sale under judgments against the vendee. The purchaser at sheriff’s sale would acquire the right to receive the money due on the secured debt. Parrott v. Baker, 82 Ga. 364 (9 S.E. 1068" court="Ga." date_filed="1889-07-31" href="https://app.midpage.ai/document/parrott-v-baker-5563329?utm_source=webapp" opinion_id="5563329">9 S. E. 1068); Gilliard v. Johnston, 161 Ga. 17 (129 S.E. 434" court="Ga." date_filed="1925-09-16" href="https://app.midpage.ai/document/gilliard-v-johnston--miller-5585628?utm_source=webapp" opinion_id="5585628">129 S. E. 434); Civil Code (1910), § 6038. Being in equity, the plaintiff must do equity, and must pay or tender the secured debt before he will be entitled to the relief prayed against the bank and Turner. Civil Code (1910), § 4521. This is a favorite maxim of equity. These judgment creditors are seeking to enforce legal rights by levy and sale of legal estates vested in Duke under these deeds. If they are only security deeds, the equity of the plaintiff is to pay up the debt secured by them. Until this is done he makes no case entitling him to the equitable relief sought.

Under the above rulings, the court did not err in refusing to grant the temporary injunction sought by the plaintiff.

Judgment affirmed.

All the Justices concur.