Lupo v. Town of Frazier

130 Ga. 409 | Ga. | 1908

Holden, J.

(After stating the facts as above.)

1. According to the testimony of H. L. Grice, the movant knew, the day before the sale of his property and on the morning •of the sale, that it was advertised to be sold under the judgment an favor of the Town of Frazier, as well as under the judgment in .favor of J. B. Carroll; for the movant approached him on these •two occasions and offered to pay the Carroll judgment upon contditions, one of which was that the land would not be sold under •the judgment in favor of the Town. With knowledge that the 'land was being sold under the judgment in favor of the Town, as 'well as under another judgment, the movant bid at the sale, and accepted the overplus from the proceeds of the sale, which was the ■amount left after paying the sum due on both judgments, the ■costs, and the expenses of the sale, with knowledge of the fact, at 'the time of accepting the overplus (according to the testimony of the sheriff), that the amount paid him was such overplus. Under ■these facts, the movant can not insist on his motion to set aside the .judgment in favor of the Town, although such motion was pending at the time of the sale, and that fact was known to the purchaser 'thereat. After the sale the sheriff made to the purchaser a deed ■fo the land, in which it was recited that the land was sold under Tboth judgments; and made, on the execution in favor of the Town, ;an entry with the same recitals and reciting that out of the pur-chase-money the amount due on the two judgments had been paid 'to the attorneys of record of the ¡ffaintiffs in execution, and that 'the balance of the proceeds, after payment of the costs and expenses of ■ sale, was paid to the movant. Under the facts above .stated, as far as concerns the movant, the judgment in favor of "the Town is settled, and any question that might arise as to whether the purchaser, who was one of the attorneys for the plaintiffs in both fi. fas., had paid any money to the sheriff, or to his clients, the plaintiffs in fi. fa., is a matter between parties other ■.than the movant, and one with which the movant has no concern, as the judgment in favor of the Town can never be operated again .against the movant’s property. Jinks v. American Mortgage Co., 102 Ga. 694 (28 S. E. 609) ; Willbanks v. Untriner, 98 Ga. 801 (25 S. E. 841) ; Pinkston v. Harrell, 106 Ga. 102 (31 S. E. 808, 71 Am. St. R. 242). The movant, with full knowledge of all the facts, having bid at the sale and accepted the overplus above referred to, can not insist upon setting aside a judgment upon which the sale was in part based and which has been settled out of the proceeds of the property.

There was evidence for and against the contention of the- movant, that he was drunk when the overplus was paid to him by the: sheriff, but there was sufficient evidence to sustain the finding, that he was then sober and knew what money was paid him, and why it; was paid him.

2. The court committed no error in excluding the declarations; of Lupo the day after the money was paid him, to the effect that, he knew nothing about its having been paid him. These declarations were self-serving and were properly excluded. No error was; committed in overruling the demurrer of the movant, or in- excluding the evidence referred to in the assignments of error as-having been excluded over his objections.

There are other questions made by the record in this case^ and other evidence than that set out in the statement of facts, but the conclusion arrived at makes it unnecessary to consider them. The record discloses no reason why the judgment refusing to set aside-, the judgment should be disturbed, and the same is

Affirmed.

All the Justices concw..