Hollis v. Sales
| Decision Date | 26 November 1897 |
| Citation | 29 S.E. 482,103 Ga. 75 |
| Parties | HOLLIS v. SALES et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Where an execution, based upon a judgment quando acciderint rendered against an administrator, is levied upon property as the property of the intestate, and a claim is filed by a third person, and the execution offered in evidence is against an individual described as "the administrator of the estate," upon objection thereto, upon the ground that the execution does not follow the judgment, there was no error in allowing the former to be so amended as to make it conform to the later. (a) Where the execution, as amended was broader than the judgment, in that it was issued against the property which is now or may hereafter come into the hands of the administrator, the direction contained in the words "which is now" may be disregarded as surplusage, and the execution stand as a good execution quando.
2. Where, upon the trial of such a claim, the evidence introduced upon the part of the plaintiff in execution showed the administrator in possession prior to the rendition of the judgment quando, and thereupon the claimant moved to dismiss the levy, upon the ground that the judgment quando was an adjudication in favor of the administrator upon his plea of plene administravit that all the property in his possession (including that levied upon) prior to the judgment had been fully administered, and that, therefore, the property was not subject, it was error not to have sustained such motion; but where, thereafter, the claimant, assuming the burden of proof, introduced in evidence a deed to the property levied upon, which purported to have been executed by the intestate and showed possession in pursuance of the deed, the presumption arising from the judgment quando, that such property had been administered, was rebutted, and this cured the error committed in refusing to dismiss the levy.
3. Where, in the trial of a claim case, an issue arises upon whether or not a deed from the defendant in execution to the claimant was a fraudulent conveyance, the sayings of the defendant, he being dead at the time of the trial, that he had executed such deed in settlement of a debt bona fide due by him to the claimant, are, as to the plaintiff in execution, hearsay only, and inadmissible.
4. Upon the trial of the issue of fraud or no fraud in the execution of such a conveyance, where there is no evidence showing that the land conveyed was worth either more or less than the price stated in the deed, it is error for the trial judge to charge the jury that they could consider the inadequacy of the price paid for the land.
5. A fraudulent intent, in the execution of a deed, upon the part of the grantor, which was unknown to the grantee, and which he had no reasonable ground to suspect, will not vitiate the title of the latter.
6. As a general rule, where witnesses are equally credible, the testimony of one who swears positively to a fact is entitled to greater weight than that of one who swears negatively.
7. Other than as above indicated, no material error of law was committed upon the trial.
Error from superior court, Chattahoochee county; W. B. Butt, Judge.
Proceedings by William Sales and others to subject lands belonging to the estate of M. T. Hollis, Sr., to the satisfaction of a judgment against M. T. Hollis, Jr., as administrator of deceased's estate. Mary A. Hollis filed a claim to the land. From an order allowing an amendment to the executions, she brings error. Reversed.
Brannon, Hatcher & Martin, for plaintiff in error.
Miller & Miller, J. H. Lumpkin, E. J. Wynn, and J. E. Chapman, for defendants in error.
It appears from the record that M. T. Hollis, Sr., died indebted to Sales, Stephens, and Jefferson. M. T. Hollis, Jr., was appointed administrator of the estate. Sales, Stephens, and Jefferson brought suit against the administrator upon the indebtedness of his intestate. He pleaded plene administravit, and this plea was sustained. Sales and the others thereupon entered up judgments quando acciderint. Executions issued upon these judgments were, some years afterwards, levied upon a tract of land as the property of the intestate. Mrs. Hollis, the wife of the intestate, filed claims to the land. Upon the trial the different claims were consolidated.
1. The plaintiffs offered in evidence the judgments quando and the executions issued thereon. The claimant objected to the introduction of the executions, on the ground that they did not follow the verdicts and judgments rendered in the cases; that the judgments were entered quando acciderint, and the executions did not follow these judgments, but issued against the administrator of the estate, and not against the assets of the estate which should thereafter come into his hands to be administered. Upon the motion of the plaintiffs in fi. fa., the executions were amended so as to conform to the judgments quando. To this, claimant excepted, and assigned error thereon. The court was right in allowing the amendment to be made. Section 5114 of the Civil Code provides, in substance, that an execution may be amended so as to conform to the judgment from which it issued, and that such amendments shall in no manner affect the validity of the execution nor invalidate the levy thereof. In the present case the executions did not follow the judgments, and it was right and proper for the court to allow them to be amended.
In amending the judgments, the amendments were made broader than the law authorized. Instead of following the judgments quando, and reciting that the execution was to be levied upon the goods thereafter to come into the hands of the administrator, it was made to include also goods "now in the hands of M. T. Hollis, Jr., administrator." The amendments relating back to the time when the executions were issued, these words were, of course, improper. The plea of plene administravit having been sustained, the judgments quando were against the assets of the intestate which might thereafter come into the hands of the administrator to be administered, and the execution should not have been amended so as to include goods in his hands at the time of the rendition of the judgments. In our opinion, however, the words "now in the hands of," etc., may, relatively to the present litigation, be disregarded as surplusage, and the execution stand as an execution quando. As such, it was admissible as evidence in the trial of the claim case.
For much the same reasons, it was not error to allow the levy to be amended upon the testimony of the sheriff so as to conform to the execution as amended. Section 5116 of the Civil Code declares that "the sheriff or other executing officer may amend his official entries and returns so as to make such entries and returns conform to the facts of the case at the time such entry or return was...
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