Parker v. Beall

67 Ga. 334

• Court: Supreme Court of Georgia
• Decided: September 15, 1881
• Status: Published

Opinion

Jackson, Chief Justice.

This was a claim case, and on the issue formed the jury found for the claimant. Thereupon the court refused a new trial, and plaintiff in execution excepted.

The court certifies only one ground of the motion as correct, declining to certify the truth of that in respect to the incompetency of the juror.

1. That ground is in respect to the'charge that if the jury believed from the evidence that plaintiff in error and claimant were both creditors of Brannon, who was in failing circumstances, and it was agreed «between them that Brannon’s proposition should be accepted to receive his lands in payment of their debts, and in pursuance of that agreement claimant gave up his indebtedness and took the deed to the land levied on, then the jury would be authorized to find for claimant — the objection being that there is no evidence to authorize the charge. On an examination of the evidence in the bill of exceptions certified, we are not prepared to say that there is not enough to authorize the charge, and there is, therefore, no error on that ground of the motion.

2. But it is further alleged that the verdict is against law. The deed from the defendant in execution to claimant is younger than the judgment of the plaintiff in execution,and he bought with knowledge of that judgment,and has held the land in open and notorious possession more than four years. So that whether or not he is protected as an innocent purchaser bona fide and for value with possession for more than four years, depends upon whether the facts found by the jury estop the plaintiff from making that point. On the facts so found we think that the plaintiff is estopped. It would be iniquitous to permit him to induce the claimant t-o surrender to the defendant in execution the debts he held against him and take the land in lieu of those debts, and then levy on and sell the land years afterwards.

Whilst the knowledge of the judgment ordinarily will, as ruled by a majority of. this court in Phillips vs. Dobbins, 56 Ga., 617, affect the bona fides of the purchaser, even so as to" show without moré that he cannot be a bona fide purchaser in the sense of the four years’ possession statute, yet where a joint creditor of the same debtor actually agreed to divide the _ debtor’s land, and to let the claimant have part thereof, surely it cannot be sound law that he should repudiate it, after he had caused claimant to surrender his evidences of indebtedness, and could not possibly put him back where he was before the agreement. It would be contrary to public policy, based on common honesty, to permit it, and such is the meaning of our statute. Code,§3753. It is an agreement “on which the other party acted to his injury,” and “it would be more unjust and productive of more evil to hear the truth than to forbear the investigation.”

Judgment affirmed.