19 Ga. 527 | Ga. | 1856
By the Court
J. deliveringthe opinióh'J
■ The refusal Of the Court to charge' the‘Jury as. requested ’by defendant’s Counsel, and the .charge .of the Court tó the 'Jury as given by him; are excepted to by said "Counsel1, ’ and constitute the error# 'alleged against .the decision, of the ÚÍN •cuit Judge; " ,
The first request raises the’, questions,' of the sufficiency, óf "the service of the bill and injunction on the defen.dant? Crawford, his obligation to obey it without personal. notice,, and 'tíre legality and 'validity Of the'sale made by. the' Sheriff to' Morris; under the execution in'favor pf 'Crawford _ against 'Glascoch.'' ' '' " ' _ '
[1.] The hill was served by leaving, á copy “ at .'the Residence of George W.. Crawford.” ‘ The Statute.declares,.Rjmt a copy of the hill shall be served 'on" the '“opposite party,”' but docs not prescribe'the mode'of service.'1 (Cobb’s New Dig- 467.)' When the defendant resides out "of ihe 'State, bills of injunction may he Served' obhis Attorney'or by. pubication. (Cobb, 524.) The service'of the bill, as aboriginal bill in Equity, without, an injunction, was unquestionably sufficient. . Was the scrVice of the. injunction such, as to give "it effect and to lay on the defendant an obligation to qbeyjit.? By a strongly controlling weight, of .authority, it was , sufficient; and for the breach of it he might hayo been proceeded against for contempt. It is probable, from what was stated in the argument, that he'might have; purged himself of the contempt, by a sworn denial of personal service or-amótice of the, injunction.. But that- is not the question, here./ Tbd.record shows that the parties in inter'est carne befóte the Couirfc. The defendant, Crawford, was a party in interest. That
Whether the defendant, Crawford, had proper notice of the injunction or not, the service was sufficient to give force and effect to the decree-against him. The decree was rendered in 1844. ■ The éxecutíon was assigned to Morris in 1845. Morris stood in no-better position-than Crawford, in regard to the execution, and Ms power to enforce it. (Cobb, 499; 2 Kelly's R. 155.)
He,.therefore,, purchased under his .own execution, -with, a decree of the Court of Chancery against him, postponing his judgment and execution to the claims for the satisfaction of which the receiver .-.subsequently sold the land. He could .acquire, no title under-such a purchase.' . .
[2.] The Court very,properly refused to charge the Jury .as.asked' inrthe second -request of defendants Counsel. The decree1 of. .the Court of Chancery of Richmond -County- was against--Crawford, ;and- postponed his execution debt, incommomwith the claims of all- other creditors of Glascock, to the_ -charges against his. estate for, the .satisfaction of .wMch the land in--controversy .was sold under .the decree. The .decree bound the entire estate of deceased, and the title to the'land, sued for.-sVas'turned-over to- Holt, the receiver, by the dismissed administrator, as. part -.of,-the-assets of his estate.-. Although Morris is-:the: purchaser of the. execution, the law places'-him in the position'of. his assignor, and-.he must be considered as purchasing, under his own - enjoined execution; with a.'decree in:.Chancery against him .'.postponing Ms execution . to the. claim .under which the plaintiff in ejectment .purchased-the land. His titlo, under such .a-' sale, is' void. Roberts vs. Jackson, (1 Wend. R. 485.)
The exceptions to the charge, of thé Court to the Jury, and -to the refusal of the Court to give in charge -the. third and .fourth requests, of the defendant’s Counsel,- must be over
