Welch v. Butler

McDonald J., By the Court. delivering the opinion. [1.] The charge of the Court to the jury, that if they believed, that if the judgment upon which thefi.fa. was issued, was dormant, the sale was void, and the purchaser at Sheriff’s sale got no' title, and they must find, for the plaintiff, was correct. The statute declares that such judgment shall be •void and of no effect. (Cobb, 498.) [2.] If the Court was incorrect in instructing the jury, that in computing the time on th.efi.fa., they must calculate from the date of the judgment, or the last entry on the fi.fa., we-will not, for that cause, reverse the judgment, if the verdict be right There was an entry, legally made on the fi. fa., and the alternative feature in the charge was neither intended nor calculated to draw the mind of the jury from the point in the case, that if a lawful entry had been made on the execution every seven years, it was good and valid. The verdict of the jury is satisfactory. .[3.] The refusal of the Court to give in charge to the jury, the requests of the counsel of plaintiff in error, submitted in writing to the Court, is made a ground for asking for a new trial. The Court refused to give them in charge because they were inapplicable to the case. And so we think. The land was sold by the Sheriff as the property of the drawer. Augustus S. Jones purchased from him, and his deed bears date on the 7th January, 1837. It was recorded 27th Feb., 1854. There was no question in this case under the registry acts, as to the validity of the title of the purchaser at Sheriff’s sale against Jones’ title. It was quite a different question. It was in regard to the lien of the judgment and validity of the execution under which the land was purchased. The five first requests of counsel for plaintiff in error, in the long string of requests submitted by them, had no application, therefore, to the case, as presented to the jury. [4.] The statute declares a dormant judgment to be void [452] and of no effect. It, therefore, requiring no act of the party to avoid it, falls not within the class of voidable judgments. All acts done bona fide under a voidable judgment are good, until it is set aside. But no act is good under a void judgment, and even a bona fide purchaser can acquire no title under it. Woodcock vs. Bennett, 1 Cowen’s R. 734. A judgment which loses its lien merely because it is not revived under the old law, was not a void judgment, and rights acquired by strangers under such judgments might have been ordinarily protected, but as our statute declares dormant judgments void and of no effect, the rule is different. The fifth and sixth requests ought not therefore to have been given in charge to the jury. There was no consent of counsel that the fi.fa. was a good and subsisting execution at the time of the sale; and the 7th request ought not to have been given in charge. [5.] At the time the entry was made on the execution by the Constable Floyd, the execution was void and of no effect. His entry could not revive it. It required the action of a Court, upon notice to the opposite party, to obtain another judgment thereon, which takes effect from its date. He acted without authority in more respects than one, which will be adverted to again presently. There was no error, therefore, in refusing to give the 8th request in charge to the jury. If the 9th request was asked in reference to the entry made by Floyd on the execution, it was illegal, and ought not to have been given. If it relates to the facts agreed upon by counsel, it was still illegal, as a Constable of Baker county, where there was no proof the defendant ever resided, was not the proper officer to make such return. The case of Duncan vs. Webb & Foster, 7 Ga. 187, requires, in my opinion, some qualification. We see nothing in the facts of this case, under the view we have taken of it in what we have said, which warrants the 10th request, and therefore say it ought not to have been charged. [453] [6.] The evidence of Jacob Watson had reference to the date of the entry and was not introduced to controvert any fact stated in it. Without going further into the consideration of the question whether the return of the Constable was traversable, it is sufficient to say that there is no legal objection to proof that it bears a wrong date. In regard to the other points made in the motion for anew trial, it is perhaps sufficient to say, that we are satisfied that the verdict of the jury is supported by the law and evidence of the case, and we will not therefore interfere with the decision of the Court below on these grounds in the motion. We will barely remark (inasmuch as it was argued with 'much earnestness, that, as the purchaser at Sheriff’s sale was a bona fide purchaser, and should be protected, although we have determined that his purchase cannot be sustained under the law) that it seems to us, that he was not as vigilant as he might have been, and that without referring to the obvious grounds on which we have placed the decision, his title could not be sustained on other grounds connected with Floyd’s entry on the execution. The judgment was obtained in Pulaski county. The execution was issued from the Justice’s Court in which the judgment was obtained. Floyd was a Constable of Dooly county, and his entry appears, from the execution, to have been made in that county. The execution had not been backed by a Justice of the Peace of Dooly county. Floyd had no authority therefore, to search for and levy on properly of the defendant in that county, and of consequence had none to make the entry of “no property.” The purchaser could have known this by examining the execution. Again, it no where appears that Butler resided in Dooly county at the time that entry purports to bear date. If he did not, the entry is a nullity, in my judgment. Judgment affirmed.