Welcnel v. Gordon

63 Ga. 610

• Court: Supreme Court of Georgia
• Decided: September 15, 1879
• Status: Published

Opinion

Bleckley, Justice.

Whilst a certain described lot of land was under levy by the sheriff as the property of Gordon, an undivided half thereof was conveyed by the complainant Welchel, to the complainant Hardin, by deed, with general warranty of title. Hardin then interposed a claim, and on the trial of the claim the property was found subject, and the execution was ordered to proceed. After this result was reached, the present bill was filed to enjoin the sale, and the chancellor refused the injunction prayed for. The complainants do not set up in their bill any title derived from, or thi’ough, Gordon, the defendant in fi.fa., but one which is adverse to his, and which was, or might have been, adjudicated upon in the claim ease. It is too late to litigate over again the dispute which was then disposed of. No new fact, legal or equitable, has come to light since the claim case was tried. What is known now to the disadvantage of the creditor’s judgment, or to the debtor’s title, or in respect to any other-material matter, was known then, and in time to have brought the same into that litigation. The adjudication in the claim case certainly binds Hardin, and we see not why it should be avoided by Welchel, his warrantor; for the levy was made in June, and the deed from Welchel to Hardin, upon which the claim was founded, was not made until the following November. If the claim case was lost by Hardin’s, fault, and not on account of the weakness of his vendor’s title, he cannot force the latter to respond on the warranty, and so Welchel will not suffer. If, on the contrary, the title was tested, as it should have been, and proved to be weaker than that of the defendant in t he fi.fa., there is no reason to test it again. Instead of claiming the land himself, as lie might have done before conveying to Hardin, Welchel seems to have preferred to pass the legal title, pending the levy, into Hardin, and let him claim. There is no allegation in the present bill of collusion between Hardin and the plaintiff in fi.fa., or the defendant in y?, fa., by reason of which the land was condemned in the claim case.:. There is no danger that the judgment in that case will'conclude Welchel in an action against him by Hardin on the warranty, unless it ought to conclude him. If, after litigating with the first claimant, a plaintiff in fi.fa. could not bring land to sale until after litigating in equity the same title with each and every previous warrantor in the claim who might choose to come forward, the burden and delay would be insufferable. On t'he facts in the record, we have no doubt that the injunction was properly refused! While we are not deficient in sympathy for all who are in distress, we should be sorry to administer private sympathy from this ■ bench, instead of public justice as regulated by law.

Judgment affirmed.