Morrison v. Knight

Simmons, Justice. 1. When this case was here before, (79 Ga. 55,) this court held that Byrd and his wife, being the usees in the judgment, and Byrd being the sheriff, he could not have levied the execution which sold the land, under which Mrs. Morrison claims; his levy being illegal, the sale o£ the property was illegal, and the deed he made to Mrs. Moriison at the time of the sale was illegal. This being so, it binds the parties in this case. 2. The court committed no error in ruling out Mrs. Morrison’s deed, made to her illegally by Byrd, the sheriff. It is true that the claimant undertook by parol evidence to show that, at the time of the levy and sale, Byrd and his wife had been divorced, and that Mrs. Byrd was the only usee in the judgment; this testimony was also ruled out by the court, and we think properly. We do not think parties can change the records of courts by parol testimony on a trial of this sort. 3. It was insisted by counsel for the plaintiff in error that this court intimated, in the former decision, that if [103] tbe deed from the sheriff to Mrs. Morrison, had been offered as a voluntary deed, the court should have admitted it, and that as it was offered on this trial as a voluntary deed, the court was wrong in rejecting it. There is no evidence in this record, and none wras offered by the claimant in the court below, going to show that this was a voluntary deed on the part of Morrison, the defendant in fi. fa. The intimation of the court in the prior decision was doubtless based upon a state of facts which might have made it a voluntary deed from Morrison to Mrs. Morrison ; and if the claimant had offered, in connection with this deed, testimony going to show that Morrison had pointed out this land to be levied .on by the sheriff', and that he stood by and saw it sold and saw Byrd, the sheriff', make a deed to the claimant in this case, it is possible it might have amounted to a voluntary deed from Morrison, although the levy and sale may have been illegal, and if made before the debt on which Mrs. Knight’s fi.fa. was predicated, would have 'taken precedence of that debt. But as said before, there was no evidence, or offer of evidence, on the part of the claimant, going to show this state of facts. It is true that the levy of the sheriff recites that Morrison pointed out the land to be levied on, but as we have held that that the levy was illegal, and the sale made thereunder by Byrd, the sheriff', illegal, because he was one of the ■ usees in the judgment, we do not think that the recital • by him in his illegal levy that Morrison, the defendant in execution, pointed out this property to be levied on, is sufficient to bind any one, or to admit the deed in evidence as the voluntary deed of Morrison. 4. But it is contended that the court erred in sustaining the demurrer to the equitable plea' offered by the plaintiff in error by way of amendment to her claim. This plea alleged, in substance, that the prop [104] erty was bought in good faith by Mrs. Morrison, and that the money paid for it was a portion of her separate estate derived from her father, and that the sum so paid over to the sheriff was, after satisfying the Rozier .ft. fa., applied by him to the extinguishment and satisfaction of executions against her husband, which executions were subsisting liens upon all the property of her husband, and were older in date than the execution or judgment of Catherine Knight; and that, therefore, the money thus paid in satisfaction of the older executions, removed an encumbrance upon said land, which would have had precedence of the execution of Mrs. Knight; and she prays that the sum of $550 which- she paid for the land, with interest thereon, be allowed her out of the proceeds of the land when sold, if it should be sold, under Mrs. Knight’s ft. fa. The court below committed no error in striking this plea. "While it is true it alleges that the executions thus paid off by her money were older in date than the judgment of Mrs. Knight, it fails to inform the court to whom these judgments belonged, who were the parties plaintiff thereto, the amount thereof, the date, or the courts in which they were obtained. These were material facts which ought to have been alleged in the equitable plea, so that the court could have passed thereon intelligently. Not being alleged, the plea was defective, and the court did not err in sustaining the demurrer. See Scruggs vs. Burke et al., decided at this term (post). There was no error in the rulings complained of in the other grounds of the motion. Judgment affirmed.