Johnston v. Crawley

By the Court. Benning, J. delivering the' opinion. Ought the motion for a non-suit to have been granted ? Did the evidence show that the defendant in fi.fa. had the title at the date of the mortgage? or, that he had the possession at the date of the levy? or, that any one claiming under him by title passing from him after the date of the mortgage, had the possession at the date of the levy? If the evidence showed any one of these things, it is indisputable that the non-suit ought not to have been granted. The evidence showed the last, if not the first of these things. The evidence showed this — that the defendant in fi.fa., being in possession of the property, mortgaged it to the plaintiff in fi.fa.; that afterwards, certain general judgments were rendered against the defendant in fi.fa., and, that, under fi.fas. issued from those judgments, the property, whilst still- ip the possession of the defendant in fi'.fa., was seized [351] and sold, that the claimant became the purchaser of it, and, as such purchaser, took possession of-it, and that whilst he was in possession of the property, under this purchase, it .was levied on by the mortgage fi.fa. Although, therefore, it was the claimant that was in possession at the date of the levy, yet it is manifest, that he must have been in possession as one claiming under the defendant in f. fa., and claiming under the defendant inf .fa. by a title passing from him after the date of the mortgage. And it follows also, perhaps, that both parties were estopped from saying, that the defendant in f.fa.. did not have title at the date of the mortgage, for both parties claim under the defendant in fi.fa. 2. Green. Ev. Sec. 307. [1.] We think then that the Court was right in refusing a non-suit The motion for a non-suit being overruled, the claimant offered the following evidence: the mortgage, the record of the proceedings for the foreclosure of the mortgage, and the minutes of the corporation — the defendant in f.fa. This evidence he offered, for the purpose of showing, that the mortgage was executed without authority from the corporation, and was therefore void. The Court rejected the evidence, deciding, that to receive it, would be to allow the judgment of foreclosure of the mortgage to be attacked “collaterally;” and that the claimant was a person who had no right to attack that judgment collaterally. Is it true then, that the claimant was such a person ? This is the.next, and only remaining question. A judgment is conclusive upon those who are parties. or privies to it, and upon none others. As to all others, it is generally no evidence at all; never more than prima facie evidence. This is indisputable. 1. Green. Ev. Sec. 522, et seq. It follows that all others, than parties or privies, may attack the judgment,.whenever and wherever it comes in their way-; may therefore attack it “ collaterally/’ [352] This being so, the question is, was the claimant a party, or a privy, to the judgment of foreclosure? The relation in this respect, which the claimant bore to that judgment, was the same as that which the plaintiffs, in the general judgments, had borne to that judgment; for the only interest which he had in the property was the interest which he acquired by purchasing the property when it was sold under their judgments. What those plaintiffs had the right, then, to sell under their judgments, was what he purchased. Were the plaintiffs in those judgments parties or privies to the judgment of foreclosure ? They were neither. They were no more parties or privies to that judgment, than was the plaintiff in that judgment, a party, or a privy, to their judgments. McDougald vs. Hall, 3. Kelly, 174. They then, not being parties or privies to that judgment, and the claimant bearing the same relation to it which they had borne, he was not a party or a privy to it. It follows, therefore, that the claimant was a person who had the right to attack that judgment collaterally. This being so, it must have been an error in the Court below, to hold that the claimant was a person who did not have this right. We think it was an error, and therefore, we think that there should^be a new trial; but this is all that we say. We say nothing whatever as to what would have been the value of the evidence, if it had been received, or even as to whether it might not be such evidence as was subject to other objections to its being received at all. We simply say, that the judgment of foreclosure was no bar to the admission of the evidence. These other questions, were not argued; we were asked not to decide them. Hence as to them, we say nothing. Judgment reversed. Judge Lumpkin was absent during this Term of the Court, on account of indisposition.