Urquhart v. Leverett

• Decision Date: 30 September 1882
• Citation: 69 Ga. 92
• Parties: UrQuhart. vs. Leverett.
• Court: Georgia Supreme Court

69 Ga. 92

UrQuhart. vs. Leverett.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1882.

Practice in Superior Court. Evidence. New Trial Bankruptcy. Charge of Court Notice. Before Judge Lawson. Jasper Superior Court. October Term 1881.

A fi. fa. in favor of Roberts was levied, on behalf of Urquhart, as transferee, on certain land, and a claim wasinterposed by Leverett. On the trial, the evidence showed, in brief, the following facts: The judgment was rendered in 1861. In 1869 this fi.fa. was levied on seventeen hundred and sixty-five acres of land as the property of John W. Wyatt This covered all the land owned by Wyatt, and included the part now in controversy. In 1873 Wyatt went into bankruptcy. Shortly before the adjudication, he conveyed the land in dispute to Messrs. Key & Preston, his attorneys, for the purpose of paying their fees for attending to the case. They took with actual notice of the judgment. In the schedule attached to Wyatt\'s petition in bankruptcy, under the head of " property heretofore conveyed " for the benefit of creditors, Wyatt made the following return: " Deed to Messrs. Key & Preston and Boynton & Dismuke, my attorneys, conveying to them one hundred acres of the land returned in this schedule, to-wit: (describing the lot in controversy) $300.00." The Roberts debt was included in the schedule, and the owners of the claim were told of it. Key assigned his interest to Preston, and on January 6th, 1874, Preston conveyed the property to Leverett. A short while after his purchase, Leverett sold the land to Mrs. Freeman, and gave her a bond for title. She went into possession thereunder, and has held ever since. She has paid a portion of the purchase money. The only act of ownership shown to have been exercised by Leverett, from the time of his purchase to his sale, consisted in running off a line, etc.

Leverett denied having any notice of the judgment and fi. fa. now seeking to subject the land, but testified as follows: " When I bought it, I made no inquiry as to any judgments against J. W. Wyatt, but relied solely on the warranty of the Preston deed. Knew that Wyatt had gone into bankruptcy, and that Key & Preston represented him. Is a brother-in-law of Wyatt, father-in-law to Pres. ton. Is the father of Frank Leverett, whose wife is Mary E. Leverett, a daughter of John W. Wyatt. Remembersthat the Hubbard place was levied on some years ago. knew that it was claimed by the wife of Frank Leverett that the case was pending some time in the court; knew that the case was decided against the claim, and that the land was sold at sheriff\'s sale; may have been present in court when it was called for trial, or when it was sold; can\'t recollect; paid no attention to it; thinks he did sign the claim bond with his son, Frank Leverett, as agent for his wife, in the claim case about the Hubbard place; have no recollection of reading the bond, but merely signed it, also signed claim bond with him in case of Eunice Holland fi. fa., levied on same land; never heard of this fi. fa. till it was levied on the land claimed Mrs. Freeman has been in possession of the land continuously ever since she bought it from me I never took actual possession of it myself except by the deed and by sale to Mrs. Freeman. Did not see the execution, but went and signed the bond."

The jury found the property not subject. Plaintiff in fi.fa. moved for a new trial, on the following among other grounds;

(1.) Because the verdict is contrary to law, evidence and the principles of equity.

(2.) Because the court admitted the record from the United States District Court, showing the bankruptcy of Wyatt, " plaintiff's counsel objecting thereto."

(3.) Because the court charged that if Leverett purchased the land without notice of the existence of this judgment and fi fa., and sold the land to another, giving bond for title and only a part of the purchase money has been paid, and if Leverett and the purchaser from him have together been in possession for four years prior to this levy, then the property should be found not subject.

(4.) Because the court refused to charge, in effect, that if Leverett sold to Mrs. Freeman, who went into possession under a bond for title and has since so remained, hecould not set up her possession to establish the four years bar.

(5.) Because the court refused to charge "that in determining whether Leverett had notice of such judgment, they should inquire whether there were any such circumstances in existence, and known to Leverett, as would put a prudent man on his inquiry; that if Leverett made no inquiry as to whether there were any liens or judgments against J, W. Wyatt, if it appear that he became security on a claim bond to a claim filed to land levied on by this fi. fa., these and all such circumstances are to be considered by the jury; that, in determining whether Leverett has been in possession four years, they should not consider the possession of the purchaser under Leverett."

(6.) Because the court erred in rejecting a certified copy of a judgment in the United States court for the north-em district of Georgia. [The judgment offered in evidence was as follows;:

" In the District Court of the United States for the Northern District of Georgia. In Bankruptcy.

In the matter of John W. Wyatt, Bankrupt.

Motion to dissolve injunction granted July 29th, 1873, restraining sheriff of Jasper county, Georgia, from selling 850 acres of land. Filed Oct. 26, 1878.

After argument upon the within foregoing motion, it is ordered that the same be granted, and that the injunction there mentioned be dissolved. October 26, 1878."]

The motion was overruled, and plaintiff excepted.

G. T. & c. L. bartlett, for plaintiff in error.

Key & Preston, by Jackson & King, for defendants.

Hall, Justice.

1. The objection to the admission of the exemplification from the bankrupt court was properly overruled bythe court below, in that it was a general objection and did not specify any ground so as to make any point or issue for adjudication.

2. The exemplification from the District Court of the United States for the Northern District of Georgia, showing that an injunction granted by that court staying a levy upon the property of John W. Wyatt, bankrupt, had been dissolved, was properly rejected because it did not identify the property levied on nor by what process the levy had been made.

3. The court did not err in refusing to charge as requested by counsel for plaintiff in execution " that in determining whether Leverett (the claimant) had notice of the judgment they should inquire whether there were...