106 Ga. 29 | Ga. | 1898
An execution issued upon a judgment rendered on September 25, 1876, against W. E. Wardlaw and M. C. Ward-law, was levied upon certain lands, and a claim thereto was
The claimants offered to prove by W. E. Wardlaw, that ho was one of the defendants in the execution,- that the debt was made prior to the constitution of 1868, and was his individual •debt, and was closed by a note dated'May 20,.1870, which-was. signed by his father, M. O. Wardlaw, as security, the note being the foundation of the judgment, on. which the execution issued. On the objection of the plaintiff, the court refused to al- ' low this testimony to go to the jury; and to this the claimants, excepted. E. T. Hickey testified-that Mrs. M. .J. Wardlaw took possession of the land in dispute .immediately after the decree was rendered in her favor in- 1884, and remained in peaceable possession of the- same until her death in 1896; and after her death the claimants went into possession of it. The court, on motion of plaintiff’s counsel, directed the jury to return a verdict finding the property levied on subject, and to the action of the court-in directing this verdict the claimants excepted.
The exception as to the- refusal of the court to .allow the testimony of W. E. Wardlaw, referred to above, to go to the jury, was not argued before, this.court either by, brief or otherwise.;
It was provided in the decree that M. C. Wardlaw should hold the title to certain real estate in trust for the sole and separate use of M. J. Wardlaw, until the further order of the court. There being no parties to this proceeding except Wardlaw and his wife, of course no one is bound by this judgment impressing the title which Wardlaw held with the trust in favor of his wife, except himself and his wife, and those who claim under either, subsequent to the rendition of the decree. • The rights of the creditor whose judgment was in existence at the time of the rendition of the decree are not affected, in any way, by the decree as a judgment. If at the time of the rendition of this
The decree should have been admitted in evidence solely for the purpose of showing color of title upon which to base a prescription. Such a decree, in connection with evidence showing adverse possession for seven years, would give a title by prescription as against the lien of a judgment rendered against the defendant in the decree before the prescription began to run, if there was no levy on the property until after the prescriptive title had ripened. Johnson v. Neal, 67 Ga. 528. If, however, it should appear that the suit between Wardlaw and his wife was collusive and fraudulent, then no prescription could be based upon such a decree as color of title. Civil Code, § 3589.
Judgment reversed.