Smith v. Walker

• Decision Date: 18 January 1887
• Parties: SMITH v. WALKER, Ex'r.
• Court: Georgia Supreme Court

3 S.E. 256

77 Ga. 289

SMITH v. WALKER, Ex'r.

Supreme Court of Georgia

January 18, 1887

Error from superior court, Henry county; LUMPKIN, Judge.

In 1867 a fi. fa., in favor of one Mitchell, was levied on 800 acres of plaintiff's land. It was agreed between plaintiff and defendant, who was indorser for plaintiff, that the defendant should buy the property at the sheriff's sale, and permit the plaintiff to redeem it, on payment of the purchase money and the claims on which defendant was indorser. Defendant purchased the property at the sheriff's sale, and took a deed therefor, but plaintiff remained in possession. A few weeks after the sale plaintiff went into bankruptcy, and returned in his schedule of assets this property as subject to a lien of defendant for the amount paid at the sheriff's sale. In the bankruptcy proceedings defendant claimed that the land was subject not only to a lien for the purchase money, but also to the amount of the claims which he, as indorser for plaintiff, had paid off. The register found against this claim; but, pending a rehearing, which had been granted, the assignee and defendant, with the consent of the United States district court, entered into an agreement, in pursuance of which assignee conveyed the land in question to defendant, in consideration of his releasing, and entering as satisfied all his other claims against the bankrupt's estate. The plaintiff, with the consent of all his creditors, except defendant, received his discharge in bankruptcy. He then made a motion in the United States district court to set aside the settlement between his assignee and defendant, which was denied. Pending the proceedings in bankruptcy, plaintiff filed his petition in chancery in this action in the superior court of Henry county, setting up the contract made at the sheriff's sale; alleging that the land was worth more than defendant's claim; that he had tendered defendant the purchase money and interest; that he had paid the claims for which defendant was indorser, and that the settlement between the defendant and his assignee was fraudulent; and prayed for a reconveyance according to the contract. The plaintiff, in the meanwhile, had taken possession of 350 acres without defendant's consent. Defendant filed his answer, and prayed, by way of a cross-bill, to recover back the 350 acres. The case was heard on the cross-bill defendant introducing in support of his title the sheriff's deed and the...