69 Ga. 283 | Ga. | 1882
This was a claim case arising upon a levy made under an execution in favor of George P. Thomas & Co., on certain real estate as the property of I. N. Hart, and
We do not see that a fi. fa stands upon the same footing as other office papers, which are required by law to be kept “of file” in the court where they originate. A fi. fa. of necessity is to be taken from the office, that it may be executed. It is the warrant of the officer to seize and sell property; it may be the subject of separate and independent litigation ; the possession of it by the owner has been often recognized by the courts as in nowise to invalidate it; °it may be sold and transferred by him with the judgment on which it is founded ; it may be admitted as a sort of “ free lance ” in a general fight with other fi. fas. in a contest for money, and unlessjrejected for some legal defect apparent, or to be made so, it maintains itself according to its internal force and priority. In the absence of some legal difficulty in the way, original papers are always the best evidence. In the case of Dobbs et al. vs. The Justices, etc., 17 Ga., 625, it was held that, “ Original papers, if to be procured, are always better evidence than copies; and the latter are allowed only from necessity or convenience.” It has been further held that a fi.fa. is not necessary to the completeness of a record. 20 Ga., 227. An original fi. fa. from the circuit court of the United States may be, and has been, recognized by our courts without proof other than intrinsic, as having a status in the courts upon which it may claim money and make issues.
But it may be said, that in this case, forming as it does a part of the muniment of title to real estate, makes a
An affidavit of illegality may be withdrawn by the party interposing it, subject to the right of the plaintiff in fi. fa. to proceed as in claim cases, where the claims are withdrawn. That a claim may be withdrawn by the consent of the plaintiff in fi. fa., is nowhere prohibited by law. But it is said that in this case the defendant’s being in bankruptcy, denied him the right to interfere in any way with the illegality. We have searched in vain to find in this record when this defendant filed his petition in bankruptcy, when he was adjudicated a bankrupt, or when his assignee was appointed, but it is nowhere to be found. B. P. Hollis, Esq., testified that he filed defendant’s affidavit of illegality, and supposed that it was pending till he was in bankruptcy. Whether he had a schedule of property at all, and whether this property was in it,does not appear; upon the contrary, it seems that it was not re-, turned, and that the assignee never had anything to do with it, or any control over it whatever. Guided, therefore, by the record before us, we see no reason why the judge should have charged the jury as requested by counsel.
The question here made is, whether one who, in good faith, interposes a claim to property levied upon, and files his claim thereto, may not sell the property during the pending of the claim, and still maintain his title to the property as it stood when claimed, and thereby protect himself and secure the rights of the purchaser under him. We. hold that he may, and this is not to be confounded with the case of one showing title out of the defendant in fi. fa. in order to maintain his own possession.
Judgment affirmed.