119 Ga. 76 | Ga. | 1903
Miles Sweeney brought ejectment, to the April term, 1901, of Bibb superior court, against Mary Maloy, for certain realty in the city of Macon. As ancillary to this action, he brought to the same term and against the same defendant an equitable petition for injunction and receiver, in which he set forth the title upon which he relied for a recovery. Pending the suits the defendant died, and Kate I. Sweeney, administratrix on her estate, was made party defendant. On the trial the two actions were consolidated and tried as one. The plaintiff introduced the following documentary evidence: (1) An exemplification of the minutes of Bibb superior court, showing the following judgment:
“ Patrick Fleming vs. John & Mary Maloy. Complaint. No issuable plea under oath having been filed in this case: It is ordered that plaintiff have judgment against defendants, John Mulloy and Mary Mulloy, for the sum of three hundred dollars principal, with interest from August 22nd, 1867, and costs of suit. By the Court, June 14th, 1869. Whittle & Gustin, plaintiff’s attys.”
(2) An exemplification of the execution docket of such court, showing an entry thereon of the execution issued upon such judgment and its delivery to Martin, sheriff, on August 7, 1869. (3) A sheriff’s deed, dated May 7, 1873, and duly recorded, executed by George F. Cherry, sheriff of Bibb county, to Miles Sweeney, to the premises in dispute, consideration $250. • This deed recited that James Martin, late sheriff of Bibb county, on August 9,1869, levied the execution above referred to upon the land in dispute, and that George F. Cherry, sheriff, sold it in pursuance of such levy. The deed also contained the recitals usual in sheriffs’ deeds. (4) A warranty deed from Miles J. Sweeney to Patrick Sweeney, dated and recorded May 9, 1885, to "the premises in dispute, consideration $256. (5) A warranty deed from Patrick Sweeney to Miles J. Sweeney to the premises in dispute, dated June 26, 1888, and duly recorded,-consideration $500. The plaintiff testified that he had the execution referred to in his possession some six or seven years prior to the trial; that he did not know what had become of it; that he had made frequent and thorough searches for it, but had failed to find it. Sheriff Wescott and deputy sheriff Menard testified that they had made several searches in the sheriff’s office for the execution, but it could not be found. Deputy cleric Holt testified that it could not be found in the clerk’s office after
Judgment reversed on main bill of exceptions, and affirmed on cross-bill.