Jackson v. Error

• Decision Date: 31 July 1854
• Docket Number: No. 84.,84.
• Citation: 15 Ga. 557
• Parties: John Jackson, plaintiff in error. vs. Nelson Tift defendant in error.
• Court: Georgia Supreme Court

15 Ga. 557

John Jackson, plaintiff in error. vs. Nelson Tift defendant in error.

No. 84.

Supreme Court of the State of Georgia

JULY TERM, 1854.

Rule, to distribute money, in Dougherty Superior Court. Decision by Judge Perkins, June Term, 1854.

The questions in this case, arose upon a motion to distribute a fund in the hands of the Sheriff. Objection was made to a fi. fa. in favor of John Jackson:

1st. Because the judgment on which it was founded, was in a suit against two joint-contractors, and judgment was confessed by one for both of them, and the party confessing judgment, was not the one whose money was now being distributed by the Court.

2d. Because there was on the fi. fa, a levy on the tract of land, which levy has been dismissed.

3d. Because the money was brought into Court by another fi. fa., after the litigation of a claim interposed to the property levied on.

4th. Because John Jackson has a mortgage on certain lands, to secure his debt. The mortgaged lots had been sold under other fi. fas.—whether older or younger than the mortgage, did not appear.

The Court determined that the fi. fa. in favor of Jackson should not take any part of the fund—upon which of the above stated grounds, does not appear from the bill of exceptions.

This decision is assigned as error.

StRozier, for plaintiff in error.

Lyon & Clark, for defendant.

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

Could the execution of Jackson be attacked, on account of the supposed defect in the confession of judgment? We think not. The authority upon which one of the defendants confessed for his co-defendant, need not appear in the record; and we are bound to presume in favor of the regularity of the judgment—that is, that it was made upon sufficient evidence.

Shall Jackson's debt be adjudged to be extinguished, under the facts of this case?

It is to be regretted that the record is not more full. Owing to the scantiness, as well as the uncertainty of the proofs, we may fail to measure out to both parties, that exact measure of justice which it is the desire of all Courts to administer.

It seems that Jackson sold to David Ham, Lot No. 24, on Broad Street, in the City of Albany, for $1432, and took a mortgage on the property, to secure the payment of the purchase money. The lot was divided into two parts, called Eastern and Western halves. Subsequent to the sale, by Jackson to Ham, these two parcels were levied on and sold, by executions in favor of one Robert Lundy, when Jackson became the purchaser, at the price of $76. The proof leaves it doubtful, whether the fi. fas. were older or younger than the mortgage. The presumption is, that they were younger. The record shows, that Jackson bought nothing but the mortgager's equity of redemption—the mortgage not having been foreclosed.

After, Jackson entered into an arrangement with David and Daniel Ham, respecting this property; and, without going into details, it may be sufficient to state, that by the consent ofall the parlies, the Western half was sold for $600, while the Eastern was retained by Jackson, until the buildings on it were consumed by fire, when it was sold by Jackson for $300—the Hams having no agency or participation in the transaction.

Under these circumstances, what is the law of the case? When the mortgagee buys in the mortgaged property, under a junior lien, the debt is presumed to be extinguished. This presumption is founded on the idea, that the purchaser, knowing of the outstanding lien, is willing to satisfy that, and pay the amount of his bid over. This presumption may be rebutted, and the actual value of the property ascertained by sale, or fixed by the agreement of the parties in interest. In this instance, Jackson and Ham did stipulate that the Western half was worth $600; and it was sold for that. And Shor-rell's judgment, the contesting creditor for the fund in Court, not having been obtained at that time, there was nothing to prevent Jackson and the Hams from contracting among themselves, as to what should be considered the value of this property.

But there was no agreement, express or implied, as to the Eastern half. In truth, Jackson seems to have acted upon the supposition, that by his purchase, at Sheriff's sale, under the sundry fi. fas., he had acquired a complete title to this property. But feeling that it would not be right to appropriate to his own use, property worth $1432, at the small sum of $76, at which it was knocked off to him, he was willing to share it with the Hams, by applying the proceeds of the Western half to their use—retaining the Eastern to himself.

In the absence of all testimony, as to any contract between Jackson and the Hams, as it regards the Eastern half; and looking to the legal status of Jackson, as to this lot, namely: that he bid it in under a sale of the equity of redemption— he holding the mortgage on the premises—one half of his whole debt is, in contemplation of law, extinguished, and the remaining moiety should be credited with the $600, at the time it was...