Gunn v. Slaughter

Simmons, Justice. 1. The facts of this case and the' motion for a new trial will be found in the official report. 'We agree with the senior counsel for the plaintiff in error, that the main question in this case was, whether the levy set out in the record covered the land in dispute, and whether the land was sold under that levy. The presumption is that the trial judge submitted this question fairly to the jury ón the trial of the case, as there were no exceptions to the charge. The jury found by their verdict that the levy covered the land and that the land was sold thereunder. There was evidence to authorize their finding. ' As the trial judge was' satisfied therewith, we will not interfere with his discretion in refusing a new trial. 2. There was no error in refusing to allow Thomas J. Saunders, one of the securities, to testify that he had been released by the plaintiff from all liability on said fi, fa., it appearing that the' release was in writing. Nor would it have been proper to allow the proof to be made by the original release itself to bind the third purchaser and defendant in this case. It appearing that this defendant purchased some time after the sheriff’s sale, from the person who purchased from the purchaser at the sheriff’s sale. The object of proving the release was, to show that one security being released by the plaintiff, the other was also released, and therefore the fi. fa. was 129 functus officio. We are inclined to think that this would not invalidate a sale made under the fi. fa. to an innocent purchaser, especially as the security who was not released by the written instrument took no steps to have th.efi. fa. declared invalid by a legal proceeding, or if he took any, withdrew them from the court. If Alexander Saunders, whose land was sold, had been discharged by reason of his co-surety’s release by the plaintiff', he should have taken some legal proceedings to have the fi. fa. declared invalid or settled. This will also dispose of the 4th ground of the motion, wherein it is complained that the court refused to allow the record of the release of T. J. Saunders to be introduced in evidence. Besides, there was no sufficient foundation laid for the introduction of the evidence, the loss of the original not having been sufficiently proved. 3. The next ground complains that the court omitted to charge as to the discrepancy between the price the land brought at sheriff’s sale, and the value thereof. This was not error. The record shows that no request was made to the court to charge upon this subject. The price the land brought at sheriff’s sale seems to have been very small, but no fraud is charged in the record in procuring the levy to be made, or in making the sale, either on the part of the plaintiff in fi. fa., the sheriff, or the purchaser at the sheriff’s sale. Mere inadequacy of price will not avoid a sale. Code, §§2647, 2742. Judgment affirmed.