Kilgo v. Castleberry

• Decision Date: 31 December 1868
• Citation: 38 Ga. 512
• Parties: T. H. KILGO, plaintiff in error. v. R. J. CASTLEBERRY, defendant in error.
• Court: Georgia Supreme Court

38 Ga. 512

T. H. KILGO, plaintiff in error. v. R. J. CASTLEBERRY, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, December Term, 1868.)

Equity Contribution, etc. Decided by Judge Irwin. Lumpkin Superior Court. May Term, 1868.

Kilgo sued out an attachment against Benjamin F. Castleberry, as a non-resident, for $50 00, and had the same levied on certain lots of land in said county. He obtained judgment therefor, on the 6th of August, 1866. Pending this attachment, one Francis H. Stork, administratrix, obtained a common law judgment against said Benjamin F. Castleberry and Richard J. Castleberry, (his brother,) upon their joint obligation, had a fi. fa.

issued thereupon, and levied on said lots of land as the property of the said Benjamin F. The *lands were sold under said fi. fa., by the sheriff, and said Richard J. Castleberry bought the lands for $165 00, and went into possession of them. Afterwards the attachment fi. fa. was levied on the said lands as the property of said Benjamin F., the same were sold by the sheriff, and Kilgo bid them off for $60 00; but Richard J. Castleberry would not give possession to Kilgo.

Thereupon Kilgo filed his bill in equity, stating said facts, and that the lands were worth $5,000 00 because of supposed minerals therein, that this purchase by Richard J., was with notice of the levy of said attachment and was a fraud upon Kilgo as a creditor of said Benjamin F., and was intended to defeat him in the collection of his said debt, that he had offered to relinquish all his claims, if Richard J., would pay off the attachment fi. fa., but be would not pay it, that said sale to Richard J. was obtained by fraud or collusion by said Richard J. and Benjamin F., to de-feat said Kilgo, and the price paid for it was wholly inadequate, the annual rental of the land being worth $200 00.

This bill was demurred to upon the ground that it contained no equity, etc. The Chancellor sustained the demurrer and dismissed the bill. This is assigned as error.

Weir Boyd, Wimpy, for plaintiff in error.

W. P. Price, for defendant in error.

McCAY, J.

1. The entry on an attachment of the levy upon land, does not create a lien, as against a judgment obtained before judgment on the attachment. There was, therefore, no reason why the common law judgment should not sell the property. Our attachments are only quasi proceedings in rem, so that the land can in no proper sense have been locked up by the first levy. In practice, there is in...