Hobby v. Bunch

• Decision Date: 23 September 1889
• Citation: 10 S.E. 113,83 Ga. 1
• Parties: HOBBY v. BUNCH. BUNCH v. HOBBY.
• Court: Georgia Supreme Court

10 S.E. 113

83 Ga. 1

HOBBY v. BUNCH.

BUNCH v. HOBBY.

Supreme Court of Georgia

September 23, 1889

Syllabus by the Court.

1. In ejectment, no recovery can be had upon the title of a person from whom no demise is laid in the declaration.

2. A sheriff acquires no title to land by levying upon it and selling it; and, if he did, his official deed, made in pursuance of such sale, would pass his title to the purchaser.

3. No recovery can be had upon the demise of a person who had conveyed away his whole title before the action was brought.

4. A declaration in ejectment, setting out demises severally from two persons, is not amendable by ingrafting upon one of these demises an equitable claim for money in favor of a third person against the defendants. The new matter is not germane to the original cause of action, either as to parties or the subject-matter.

5. A recital of service made in a judgment foreclosing a mortgage upon realty, if silent as to the mode of service, is to be read in connection with the sheriff's return; and, where the return sets out that the service was by leaving a copy at the defendant's residence, that mode, and no other, is the one shown by the record or judgment roll, the whole of which must be taken together. Such mode being virtually no service, the judgment of foreclosure is void for lack of jurisdiction in the court to render it, and a purchaser under it is not protected.

6. However illegal the consideration of a promissory note may be, and whatsoever waivers of defenses it may contain, it is too late to urge defenses, either directly or collaterally after final judgment has been recovered, that judgment being conclusive against any and all defenses which the debtor could have made, in the exercise of due diligence.

Error from superior court, Columbia county; RONEY, Judge.

F. H. & W. K. Miller, for plaintiff.

Salem Dutcher, for defendant.

BLECKLEY C.J.

1. As there was no demise in the declaration from Caswell, his heirs or administrator, there could be no recovery by the plaintiff below on his title. Therefore all contest over his purchase at either of the sheriff's sales was irrelevant and nugatory. Showing title in Caswell would not tend to support the action, but would be the certain defeat of it since it would negative the right of all other persons, save his heirs or legal representatives, to demise the premises to John Doe.

2. It surely cannot be necessary to enter into any course of reasoning, or cite authority, to establish the proposition that no recovery can be had in ejectment on a demise from the sheriff who has seized land, and sold it, by virtue of judgments and writs of fieri facias against another person. The sheriff acquires no title to land by levying upon it; and there is no evidence in the record that this sheriff ever acquired or had title otherwise. But, suppose he obtained title by levying upon the land, he sold twice, and made two deeds to Caswell, and both those deeds were introduced in evidence by the plaintiff. After this, how could it be imagined that a recovery could be had upon a demise from the sheriff?

3. There could be no recovery on the demise from Hobby, trustee because the deed from him to Mrs. Bunch and her children passed title out of him, whether Mrs. Bunch alone acquired it, or whether it passed to her and her children jointly as tenants in common. We think, however, as her children were in being at the time the deed was executed, that she took only an undivided share, and that each of them took one share also. Ewing v. Shropshire, 80 Ga. 374, 7 S.E. 554. So far, therefore, from failing to recover as much land as the plaintiff was entitled to, the recovery, being for one-eighth of the premises, was more than the state of the pleadings, and the evidence under them, warranted. In strict law, nothing whatever was recoverable upon any demise, or all the demises, in the declaration.

4. The refusal of the court to allow the proposed equitable matter to be ingrafted upon the action of ejectment by amendment is conclusively justified by the state of the pleadings as they stood when the amendment was offered. The proposed amendment was entirely too remote from the original cause of action, and the parties thereto, to be germane to the controversy set out in the declaration. If the administrator of Caswell has any right to recover from the Bunches money paid by his intestate for their benefit, but not at their request, or to be subrogated to the rights of Hobby as plaintiff in fi. fa., let him bring a direct action therefor, and not present this claim as a mere weld on an action of ejectment brought to recover the land upon demises from other persons to John Doe. We think the two causes of action are wholly separate and distinct, not only as to subject-matter, but as to the parties mentioned in the pleadings.

5. What we have said is quite sufficient to dispose of the bill of exceptions brought by the plaintiff; but as another question of considerable interest was argued, and as we have investigated it laboriously and somewhat thoroughly, we will express our opinion upon it. That question is whether the judgment foreclosing the mortgage made by Mrs. Bunch to Hobby, trustee, was or was not void as against Caswell, who purchased the property at a sheriff's sale, made under and by virtue of an execution founded on the judgment. The judgment...