Evans v. Birge

• Decision Date: 28 February 1852
• Docket Number: No. 37.,37.
• Citation: 11 Ga. 265
• Parties: John P. Evans, plaintiff in error. vs. John L. Birge,defendant in error.
• Court: Georgia Supreme Court

11 Ga. 265

John P. Evans, plaintiff in error. vs. John L. Birge, defendant in error.

No. 37.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1852.

Ejectment, in Bibb Superior Court. Tried before Judge Starke, July Term, 1851.

This was an action of ejectment, brought by John P. Evans against John L. Birge, returnable to November Term, 1847, of Bibb Superior Court, for the recovery of several lots of land, near the City of Macon, constituting a part of what is known as the " Macon reserve;" among them, lots 74 and 79, the subject-matter really in dispute.

On the 16th day of December, 1848, Birge enjoined the action of ejectment by bill in Equity.

At the July Term, 1851, the action of ejectment and the bill were tried together. In the progress of the trial, Judge Starke dismissed the bill, on the ground that complainant had an adequate Common Law remedy.

Plaintiff in ejectment gave in evidence, the plot and grant from the State of Georgia to Samuel H. Fay, for said lots, and also a deed to himself.

The defendant in ejectment, then gave in evidence a bill in Equity, filed by the plaintiff in ejectment, in 1842, against one Alexander R. McLaughlin

This bill alleged that McLaughlin as the friend of complainant, in 1839 and 1840, advanced a large amount of money, in satisfaction of outstanding fi. fas. against complainant, took a transfer of said fi. fas. and also the notes of complainant; that said notes were renewed during the year 1840, at the end of every sixty days, at a large and usurious rate of interest; that the land known as the "Fay place" and belonging to complainant, was finally sold under and by virtue of said fi. fas. on the 6th day of July, 1841, when McLaughlin purchased the same at $3100. The bill alleged that complainant had paid off the principal and legal interest advanced on said fi. fas. by McLaughlin, with property exclusive of the " Fay place."

By an amendment to his bill, complainant charged that the " Fay place, " was again sold in January, 1842, under a mortgage fi. fa. in favor of Samuel H. Fay, against complainant. At this sale J. J. Gresham, Esq. became the purchaser, as the attorney of the plaintiff in fi. fa. with the understanding that he was to convey the same to McLaughlin.

To the bill McLaughlin filed his answer, which together with theverdict of the Jury, and the decree of the Court on said bill and answer, was read to the Jury, which was as follows: " We the Jury find and decree that the defendant, Alexander R. McLaughlin, deliver up to the complainant all the notes he now holds against the complainant, John P. Evans, and we decree that all the executions mentioned in the bill, and which are held by McLaughlin, be entered satisfied; that the defendant McLaughlin pay $348, on the elder fi. fas. now claiming the money in the Sheriff\'s hands, and find for the complainant Evans, $29 77 cts. with the cost of suit to be paid by the defendant."

Plaintiff in ejectment then offered in evidence, a file of the " Macon Messenger, " a paper published in the City of Macon, for the purpose of showing the illegality of the sale of lots 74 and 79, under the mortgage fi. fa. in favor of Fay, the same not having been advertised according to law.

Counsel for defendant objected to the evidence.

The Court sustained the objection, and repelled the evidence, on the ground " that the legal title to said land was out of Evans; that his admission in his original and amended bill against McLaughlin, and the answer of McLaughlin thereto, and the judgment of the Court upon the demurrer of John J. Gresham to said original and amended bill, and the verdict of the Jury, and the decree of the Court, on said original and amended bill, together with the fi.fas. showed the title out of Evans, and worked an estoppel against him, as to all of said land."

To which ruling of the Court, counsel for plaintiff in ejectment excepted.

Cole and Stubbs & Lester, for plaintiff in error.

Rutherford, Bailey & Hines, for defendant.

By the Court.—Nisbet, J. delivering the opinion.

The question made for our consideration in this case is single, but rather difficult to come at. The plaintiff below had given in evidence certain deeds for the land in question, knownas the Fay Place, amounting to some seven hundred acres, and composed of a number of fractional lots on the cast branch of the Ocmulgee. The defendant, it seems, had filed a bill to aid his defence in the ejectment, to which the plaintiff, Evans, had answered, and which bill by consent was also on trial. The pleadings in that bill had been read to the Jury. The defendant below had also read in evidence a bill, some years ago filed by the plaintiff Evans, against one A. R. McLaughlin and one John J. Gresham, together with McLaughlin\'s answer thereto, a demurrer to the same filed by Gresham with the judgment of the Court sustaining the demurrer, and the verdict and decree rendered in the case. At this stage of the trial, the plaintiff in ejectment, Evans, tendered in evidence a file of the Macon Messenger newspaper, for the purpose of proving that a sale of the land in question under a mortgage ji. fa. in favor of Fay, and under which sale, (but not under that alone) the defendant Birge claimed title, was illegal, because not advertised according to law. This evidence was objected to, on the ground that the bill filed by Evans against McLaughlin and Gresham, with McLaughlin\'s answer, the demurrer to said bill filed by Gresham, and the judgment on that demurrer, and the verdict of the Jury, and the decree of the Court thereon, showed title out of him, Evans, and he was thereby estopped. The Court repelled the evidence, on the grounds taken in the objection; that is, the Court held that the record of the bill filed by Evans against McLaughlin and Gresham, show;ed title out of the plaintiff, Evans, and he was thereby estopped from asserting title to the lands. To this decision the counsel for plaintiff, Evans, excepted, and there submitted to a verdict. The question therefore is this, was Evans estopped by the proceedings had on the bill filed against McLaughlin and Gresham. To determine it intelligibly, a full statement of what that record contains and what judgments were rendered therein, and of the relation which these parties sustain to the parties in that cause, seems to be indispensable. Omitting a voluminous mass of irrelevant matter, it seems that Evans was the owner of this Fay tract of land, having bought it of Mr. Howard Fay and executed to him a mortgage for the purchase money, a part of the purchase money for which, say $5,000, was unpaid; that he became otherwise deeply involved, and judgments to a large amount were procured against him in favor of a Mrs. Johnston and divers others. Being pressed for the payment of the executions issued on these judgments, he applied to McLaughlin for aid, who bought the judgments, and took control of the executions, and at the same time took the notes of Evans, for the sums advanced by him, as collateral security, with interest, varying from the rate of forty-eight to sixty per centum. These notes were renewed at these rates, from time to time; and during which time, Evans sold to him a large amount of property, consisting of Town lots, negroes, &c. at stipulated prices (all of which is specially stated in the bill) in payment of the money thus loaned to him (Evans.) McLaughlin becoming dissatisfied with the condition of things, in 1841, caused the Fay plantation to be levied on by the Johnston and other fi. fas. against Evans, which he had bought, and it was advertised for sale, subject to the Fay mortgage, in July 1841. Evans threatening to interpose some obstacles to the sale, he and McLaughlin agreed that McLaughlin should buy the land, and give Evans all the benefit of a cash sale of it, which he (Evans) might be able to effect within twelve months, after paying to him, McLaughlin, the principal and legal interest of his advances, with attorney\'s fees. Evans, in his bill, insists that he was also to have possession for twelve months, which McLaughlin denies, but says he was only to be permitted to gather his crop. Difficulties arising between them about the possession, Evans attorned to McLaughlin. McLaughlin bid off the land at the sale for $3100, and took a deed from the Sheriff, but paid no money, Evans remaining in possession. As to this agreement, Evans charges its violation by McLaughlin, he having caused the lands again to be levied on, by one or more of the executions which he had bought and which he had transferred to one Moses Baldwin, and in seeking to turn him out of his possession. McLaughlin in his answer, denies that he got a title to the lands by this purchase, inasmuch as he did not pay the bid of $3100, and never got possession, and insists that he should not be held to account to Evans forthat sum. An interlude in this litigious drama is this: After the sale of the lands, as stated to McLaughlin, they were levied on and sold as his property, under an execution against him, and were bought by one Thomas Brown, who sold to the defendant, Birge; and here let it be noticed that though Brown, who bought the land at Sheriff\'s sale, under execution against McLaughlin, Birge claims to be in privity with McLaughlin, and by reason of that privity, also claims the benefit of estoppel against Evans. But more of this hereafter. Afterwards, still the Fay mortgage being foreclosed, these finds were brought to sale under the mortgage fi, fa. Mr. Gresham, who was the attorney, for the mortgagees, bought them for $5,000, and took the Sheriff\'s deed in his name, coming into an agreement with McLaughlin that he should have the land, upon his paying the purchase money. It appears that one of the lots of land embraced in the Fay Place, No. 79, I believe, was not named in the rule nisi for foreclosure, and in No. 74, I believe, was not specified in the rule absolute, or in the mortgage fi. fa. or in the Sheriff\'s...