Whitman v. Bolling

Montgomery, Judge. 1. In this case, the plaintiff was present at the sheriff’s sale of the property now sued for, and was one of the principal [132] bidders against the defendant — in fact, made the bid next preceding the last and purchasing bid of the defendant. The defendant swears he (the plaintiff) gave no notice whatever, at the sale, of any claim he had to the property. The plaintiff testifies that he did give public notice that he “ claimed the property, and had a title to it; that I (he) had bought it once and paid for it.” The evidence shows that the information contained in.this announcement was generally known, and certainly known by the defendants; but it also shows that the property was levied on under an execution against a former owner, under whom the plaintiff claimed. The announcement which the plaintiff testifies he made is perfectly consistent with the idea that the land was, nevertheless, subject to the lien of the judgment against the former owner. The failure of the plaintiff to give notiee that he claimed that the lien (which certainly, under the evidence, did at one time exist upon the property,) was divested, coupled' with the fact that he was present, bidding upon the property, was well calculated to mislead the defendant, and would operate as a fraud upon him if held not to estop the plaintiff from now setting up a claim superior to the lien of the judgment against the former owner. 2. The evidence of Gombs, the immediate vendor of the plaintiff, shows that the property was levied on and sold at his instance, in order to enable him to buy it in and perfect Bolling’s title, and that he informed Bolling of this arrangement before the sale, stating to him that if he desired to stop the sale, he might do so by putting' in a claim. This Bolling declined to do, saying, "No! make your own arrangements; I hold you responsible.” These facts, taken in connection with Bolling’s bidding at the sale and failing to put in a, claim, was some evidence of an acquiescence on his part in the arrangement made by Combs to perfect the title. If he did acquiesce in the arrangement, Combs, so far as the rights of third persons were concerned, was his agent for carrying it into effect. And, hence, defendant should have been permitted to show that Combs was authorized to dismiss the levy. [133] 3. The seventh ground for a new trial reads as follows: “Because the plea in said case set up, as a defense, that Combs was the real party interested in the recovery, and insisted that Combs was estopped from recovering, in said case, either in his own name or Bollings, and that the case should be tried as on a bill filed, and defendant, throughout the case, insisted that Combs was the real party plaintiff, and in his argument took the ground that if Combs had an interest the jury should render a decree, so framed as to prevent a recovery of Comb’s .interest, and the Court excluded the consideration of the equities in said case; the charge was that the jury must find a general verdict for the plaintiff, or a general verdict for the defendant, thus preventing a trial of the case, as on a bill filed in equity, which defendant insisted was the proper mode of trial.” This was an action of ejectment, and the evidence showed the legal title to be either in the defendant or plaintiff. If it had shown the title to be in Combs, that would still have entitled the defendant to a general verdict. We have gone very far in Georgia in breaking down the barriers between Courts of law and Courts of equity. But neither Courts of law nor equity have yet gone so far as to adjudicate the rights of one not a party to the record. Judgment reversed.