Westfall ex rel. O'Neal v. Scott, Carhart & Co., No. 42

No. 42 | Ga. | Jun 15, 1856

By the Court.

McDonald, J.

delivering the opinion.

£1.] The Court below ought to have sustained the demur,-rer filed in this case. The complainants cannot interpose in ■the contest between Charles C. O’Neal, as next friend of Mrs. Westfall and Hampton. They have no interest in it, and cannot be affected by any decree the Court may make.

£2.] The complainants have taken the initiatory steps to have the property subjected to the payment of their debt; ■•they have selected their forum; they have ordered a levy on .negroes, and the levy has been made.

The property has not been claimed, but it is alleged that the Sheriff has not proceeded to sell, because he - has been ■ enjoined in another case. That is no excuse, for many rea- ■ sons. The negroes are not, in that case, levied on as the property of Westfall, but of Hampton. In complainant’s ■ case, they are levied on as Westfall’s property, and they may ,not be claimed under that levy. The Sheriff will certainly be subject to be ruled for the money, if he does not proceed to sell.

If the facts stated in complainant’s bill be true, there is nothing to prevent the property from being found subject to their judgment, if it should be claimed.

According to their allegations, Westfall did not make the sale to Hampton until the lien of their judgment had attached; and it was without consideration and fraudulent; and therefore, a claim by him, if these things be true, cannot prevail.

The same may be said in respect to any claim that may be interposed by Mary 0. Westfall or her next friend, if the .statements of the bill are true.

The complainants say that the marriage settlement between their debtor, Thomas G. Westfall, and his wife, Mary C. although written out and signed, was never actually entered into nor recorded; and that by the consent of all the parties thereto, and at the special instance and request of the said Mary C. it was agreed before the marriage, in the presence of many persons, to be thrown aside, and was revoked .and annulled, and never considered as of any binding force after it was signed. If what complainants allege be true, .there can be no reason why a Court of Chancery should take ■ cognizance of the case, especially after the complainants have elected to proceed by levy.

The judgment of the Court below is reversed.