72 Ga. 463 | Ga. | 1884
1. The defendant in error moved to dismiss this writ of error, upon the ground that certain original papers and documents, offered in evidence by plaintiff in error on the trial, 'were incorporated in the brief of evidence filed on the motion for new trial, and that copies of the same were not so incorporated. Upon this brief of evidence was the following agreement:
“It is hereby agreed that the within brief of evidence is a true and correct brief of the evidence, and contains the original papers, which, we hereby consent shall be used. October 27, 1883.
(Signed) G. T. & O. L. Bartlett,
Plaintiff’s Attorneys.”
“Approved as a brief of the evidence, and ordered filed, October 27,1883. J. T. Clarke,
J. S. O. P. 0., presiding.”
However, much we disapprove the practice of incorporating original papers and documents in a brief of evidence,, and the practice cannot be too severely condemned, in this case we do not think that defendant in error is in a position to aver against it. He consented to the use of the original papers in the manner in which they were used. He stands in pari delicto, by having consented to the use made of the original papers by plaintiff in error, and cannot urge its illegality in this motion to dismiss the writ of error. However wrong the plaintiff in error may have been, this wrong was participated in by defendant in error. The parties are equal in whatever wrong was-done.
But we know of no case where the writ of error was dismissed, under circumstances similar to the one at bar.. See Baldwin vs. Daniel, 69 Ga., 782 ; 30 Ga., 674. The papers are identified by the approval of the presiding judge. The transcript of the record, certified and sent up to this cou-rt, is regular, and we doubt if we can go beyond this in discovering errors and- irregularities. The case is-tried here upon a transcript of the record; if that is full-
2. The main question in this case arises upon a construction of section 3583 of the Code, which is: “ When any person has bona fide) and for a valuable consideration, purchased real or personal property, and has been in possession of such real property for four years, or of such personal property for two years, the same shall be discharged from the lien of any judgment against the person from whom he purchased.”
Is a person who purchased said property, with knowledge of a judgment against the person from whom he purchased, a bona fide purchaser, within the meaning of the statute ? We think so. The. fact that a purchaser had knowledge of the judgment sgainst his vendor, does not constitute the purchaser a wrong-doer; he is, notwithstanding this knowledge alone, a bona fide purchaser. Yet we think that this may be looked to, in connection with other facts, in determining whether the purchase be bona fide or not.
Whether a purchaser be a bona fide purchaser, depends upon other facts than a knowledge by such purchaser of the existence of a judgment against the person from whom he purchased. If it be shown that such purchase wa-s made to hinder, delay and defraud the creditor, or the circumstances show that such purchase was not made in good faith, but for the purpose of taking an undue advantage of the creditor, then he would not be a bona fide purchaser, But where a valuable consideration was paid for the property, and the purchaser enters into possession of the same as his own property, and holds it for four years (the same being real property), then the same is discharged from the lien of any judgment against the person from whom he purchased, notwithstanding such purchaser may have known of the existence of such judgment. Whatever may have been the rulings heretofore by a majority
The ruling of the court below not being in accordance with the views here expressed, the same is reversed.
Judgment reversed.
See Sanders vs. McAfee, 42 Ga., 250 et seq.; Phillips vs. Dobbins, 56 Id., 617 ; Broughton et al., ex’rs, vs. Foster, ex’r, 69 Id., 712 ; Danielly, adm'r, vs. Colbert, adm’r, 71 Ga., 216