Tucker v. Cornog

58 Ga. 443

• Court: Supreme Court of Georgia
• Decided: January 15, 1877
• Status: Published

Opinion

Jaokson, Judge.

Knox, when in life; obtained judgment against Dorough, and execution was issued thereon. This execution was levied upon a. house and lot in Carnesville, claimed by Tucker. Tucker set up in defense an equitable plea, to the effect that Knox, or- his executor; had levied upon other property- of Dorough in the possession of one Cobb; that Cobb filed a bill and- litigated- with them ; that the case was settled by an agreement between the executor, Cobb and Knox, that Cobb would pay all costs, levy included, and Cobb’s property should be released, and Dorough would otherwise pay to the executor of Knox the fi-fa.; that this took place in 1870, and afterwards, in 1872, Dorough sold the land now levied on to Tucker, the claimant, and that' such release of the property of Cobb discharged Tucker’s purchase from the lien of Knox?s judgment. The court below struck this equitable plea, and the question is, was there equity in this plea %

1. If Tucker had bought the lot now levied on before the release to Cobb, we think that. Tucker’s purchase would have been discharged, had he bought in good faith and- paid value ; but, as he bought afterwards, we are at a loss to- see how he derived any equity from the release. He bought from Dorough in statu quo — he bought, subject to any lien then existing against the-land when Dorough’s — this lien of this judgment did- exist — his- equitable plea showed that Dorough had agreed in the settlement with Knox and Cobb to pay this judgment out of other property of his; this purchase, which he afterwards made, was a part of this other property, and was liable to the judgment when Tucker bought; and no release was ever made by Knox, or his executor, of anything afterwards. We, therefore, cannot see any equity in Tucker’s plea. All that Knox had done was done before his purchase; all was of record; he bought with the record before him, and took what he bought cum onere, with the burden of this unpaid judgment, which Borough had agreed to pay out of property other than that released, a part of which was this claimed by him.

2. Besides, the fact afterwards appeared, that when he bought he took bond and security from Borough to protect himself from the lien of judgments against Borough. Surely the court was right to admit that bond in evidence.

3. We cannot see how the case can be affected by the fact that the land was once set apart as homestead, and that Mrs. Borough signed the conveyance- to Tucker with her husband, and- with the approval of the ordinary, especially as there was testimony to show that the fi. fa. or judgment was for purchase money.

In view of all the facts, we are clear that the court was right in dismissing or striking the equitable plea, in admitting the bond in evidence, and in- overruling the motion for a new trial.

Judgment affirmed.