| Ga. | Mar 15, 1861
delivering the opinion.
1. If Varnum is to be believed, this is a plain case. It seems that in the Spring of 1837 or 1838, he was employed by Samuel King to take the bonds for titles which he held on Metts and Riley, whether as vendee or transferee, witness does not recollect, and it is immaterial, for lots No. 1055 and 108Ó, pay the balance of the purchase money, and take deeds to King, which he did. Here, then, is the title vested in King subsequent to the Justice’s Court fi. fas. which Field bought of Hills & Cantrell. That in 1840 he was employed by Tully Choice to take these same two deeds to the grantees, (how Tully Choice came by them does not appear,) and have them exchanged for deeds to Choice; and this also Varnum did—of course the two lots of land are subject to the lien of Field’s executions.
2. The levies were, pending on these fi. fas from 1843 to 1851. Lewis Ralston, one of the claimants, bought in 1845, and of course is chargeable with notice of the fraud in the transfer of these lands from Samuel King to Tully Choice, the claim to which was then pending.
3. There is no evidence that William M. Varnum was a partner of King, or interested in the lands. The Court was right in refusing to give a charge founded upon such assumption, there being no evidence to justify it. Indeed the evidence seems rather to negative this hypothesis, for he seems really to have acted as the agent of Tully Choice in securing an exchange of the title papers in his favor.
4. As to the Court refusing to dismiss the levy on account of the time which had elapsed, it is sufficient to reply, that no motion was made by the claimant for that purpose, and a cause is never dismissed without motion, in the nature of a rule nisi, calling on the opposite party to show cause why he does not proceed.
5. It is objected that Varnum does not prove the contents of the deeds. He states that they were deeds to lots of land No. 1055 and 1080, and under the Act of 1821, they are presumed to convey a fee simple, unless a less estate was
6. But suppose no deeds were taken; what of that? ’V'arnum. swears that he paid the balance of the purchase money to Metts and Riley for King, and this makes the land subject to the judgments against King.
Let the judgment be affirmed.