Sweeney v. Sweeney
| Decision Date | 28 November 1903 |
| Citation | 46 S.E. 76,119 Ga. 76 |
| Parties | SWEENEY v. SWEENEY. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Where, on the trial of an action for the recovery of land brought by one who claimed to have purchased the same at a sheriff's sale against the defendant in the execution under which it was sold, the plaintiff introduced in evidence the sheriff's deed, accompanied by an exemplification of a valid judgment against the defendant, and proof of the loss of the execution issuing therefrom, a prima facie case of title in the plaintiff was made out, and it was erroneous for the court to charge the jury that the sheriff's deed could be considered only as color of title.
(a) A judgment rendered by the court in 1869 in a suit on an unconditional contract in writing, where no issuable defense was filed under oath, in all respects regular, except that it was not signed by the judge, is valid if entered on the minutes of the court, and they are signed by the judge; and in the absence of any proof to the contrary, it will be presumed that the judge signed the minutes.
(b) Sufficient evidence was introduced in this case to raise a reasonable presumption that the execution was lost, and to show due diligence in searching for it.
(c) The recitals in a sheriff's deed, of the execution, and the seizure and sale of the property by virtue thereof, are, when the execution is lost, prima facie evidence of the truth of such recitals.
2. The declarations of an agent, who is in possession of realty merely to manage and care for the same, are not admissible in evidence against the principal to disparage his title.
3. Where evidence is objected to as a whole, and some parts of it are admissible, it is not erroneous to overrule the objection.
4. A judgment abating an action upon the ground that the plaintiff had brought the same without having paid the costs which had accrued in a previous suit, involving the same subject-matter and against the same defendant, which had been begun and dismissed by him, is no bar to the bringing of a third suit for the same cause of action, and against the same defendant if, before instituting the last proceeding, the plaintiff has paid all the costs which had accrued in the two previous suits.
Error from Superior Court, Bibb County; W. H. Felton, Jr., Judge.
Action by Miles Sweeney against Mary Maloy, and equitable petition against the same defendant for an injunction. The suits were consolidated, and, on the death of defendant, Kate I. Sweeney, administratrix, was made defendant. Verdict for defendant, and plaintiff brings error, and defendant assigns cross-error. Reversed on main bill of exceptions, and affirmed on cross-bill.
M. W. Harris and J. R. Cooper, for plaintiff in error.
W. J. Grace and J. L. Anderson, for defendant in error.
Miles Sweeney brought ejectment, to the April term, 1901, of Bibb superior court, against Mary Maloy, for certain realty in the city of Macon. As ancillary to this action, he brought to the same term, and against the same defendant, an equitable petition for injunction and receiver, in which he set forth the title upon which he relied for a recovery. Pending the suits the defendant died, and Kate I. Sweeney, administratrix on her estate, was made party defendant. On the trial the two actions were consolidated and tried as one. The plaintiff introduced the following documentary evidence: (1) An exemplification of the minutes of Bibb superior court, showing the following judgment: (2) An exemplification of the execution docket of such court, showing an entry thereon of the execution issued upon such judgment and its delivery to Martin, sheriff, on August 7, 1869. (3) A sheriff's deed, dated May 7, 1873, and duly recorded, executed by George F. Cherry, sheriff of Bibb county, to Miles Sweeney, to the premises in dispute; consideration, $250. This deed recited that James Martin, late sheriff of Bibb county, on August 9, 1869, levied the execution above referred to upon the land in dispute, and that George F. Cherry, sheriff, sold it in pursuance of such levy. The deed also contained the recitals usual in sheriff's deeds. (4) A warranty deed from Miles J. Sweeney to Patrick Sweeney, dated and recorded May 9, 1885, to the premises in dispute; consideration, $256. (5) A warranty deed from Patrick Sweeney to Miles J. Sweeney, to the premises in dispute, dated June 26, 1888, and duly recorded; consideration, $500. The plaintiff testified that he had the execution referred to in his possession some six or seven years prior to the trial; that he did not know what had become of it; that he had made frequent and thorough searches for it, but had failed to find it. Sheriff Wescott and Deputy Sheriff Menard testified that they had made several searches in the sheriff's office for the execution, but it could not be found. Deputy Clerk Holt testified that it could not be found in the clerk's office after careful search. The plaintiff's contentions were, in brief, that he purchased the property in good faith at sheriff's sale, and paid $250 for it; that he went into actual possession under the sheriff's deed, and so remained, holding the property adversely, until 1885, when he conveyed the property to his brother Patrick Sweeney, with the verbal understanding between them that Patrick should hold the title until the plaintiff should return from Ireland, where he then contemplated going for a few years; that, upon his return from Ireland, Patrick reconveyed the property to him, in 1888; that he remained in possession of it till 1893 or 1894, when, Mary Maloy having gone into possession of part of it, he sued out a warrant to dispossess her. The defendant's contentions, in substance, were that Mary Maloy had been in the actual adverse possession of the property for more than 30 years; that plaintiff had never been in possession; that Mary Maloy furnished plaintiff with sufficient money to pay for her the claim of Patrick Fleming, and she believed he had done so; that he fraudulently had the property sold by the sheriff, and took the sheriff's deed to the same, and she had no knowledge until recently that any such sale had ever been made, or that plaintiff claimed to own any interest in the property. Evidence was submitted by both parties tending to sustain their respective contentions. There was a verdict in favor of the defendant. The plaintiff moved for a new trial, which being refused, he excepted.
1. The court charged the jury that, inasmuch as the execution in favor of Fleming against John and Mary Maloy had not been put in evidence, the deed from Cherry, sheriff, to Miles Sweeney could be considered by them only as color of title, and that to make out a prima facie case, plaintiff would have to show seven years' adverse possession under such deed. In the motion for a new trial, error was assigned upon this charge, and we think the exception well taken. A sale regularly made by virtue of a judicial process issuing from a court of competent jurisdiction conveys the title as effectually as if the sale were made by the person against whom the process issued. Civ. Code 1895, § 5446. And in all controversies in the courts of this state the purchaser at such a sale shall not be required to show title deeds back of his purchase, unless it be necessary for his case to show good title in the person whose interest he purchased. Id. § 5447. As we have seen, the suit was brought against the defendant in execution by the purchaser at sheriff's sale; and the sheriff's deed exhibited in evidence by the plaintiff was accompanied by exemplifications showing a judgment against the defendant, the entry on the execution docket of the execution issued on the judgment, and delivery of the execution to the former sheriff, and by proof of loss of the execution. While the judgment was rendered in a suit upon an unconditional contract in writing, where no issuable defense was filed on oath, yet it appears to have been rendered "by the court," and was entered on the minutes; and the presumption is, nothing to the contrary appearing, that the court did its duty by signing the minutes. The judgment was therefore valid. American Mortgage Co. v. Hill, 92 Ga. 305, 18 S.E. 425, and cases cited. Proof that the fi. fa. was entered on the execution docket, and that the docket showed a delivery of the execution to the former sheriff, was sufficient to show that the fi....
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