Hardman v. Cooper

Little, J. The plaintiff in fi. fa. was not entitled to a verdict finding the land subject, when it appeared that the claimant’s possession was as executor of the will of Willis Cooper. Nor do we think that the equitable issues which were tendered by him by way of amendment ought to have been allowed. The amendment offered would, if allowed, have changed the entire character of the proceeding. The issue under the claim was, whether the land levied on was the property of William Cooper, and therefore subject to plaintiff’s judgment against William Cooper. The amendment virtually alleged that the estate of Willis Cooper owed the plaintiff, as the balance of the purchase-money of certain lands, a part of the sum incorporated in the judgment, and it was sought by the amendment to have the land subjected to the payment of so much of that judgment as represented the debt of the testator, and this, too, without ever having put the title of the land which he wished to subject in the estate of Willis Cooper, or having the amount he claimed the estate owed him adjudicated in any way. More than this, the testimony of the plaintiff showed he had surrendered the note given to him by Willis Cooper, and taken in lieu of it the note of William Cooper, and entered into a new obligation to make William Cooper individually a title to [254] the very land for the purchase of which he claimed, by his amendment, the estate of Willis Cooper was indebted to him. The record shows that there were three heirs at law of the estate of Willis Cooper besides William Cooper, the defendant in fi. fa., and we know of no principle of law which would permit their rights to be adjudicated in a claim case between the plaintiff in error and William Cooper individually. It is not necessary for this court, under the questions made in this record, to decide whether the plaintiff in fi. fa. had voluntarily surrendered his lien on the land in the hands of the executor for balance of the purchase-money, nor whether, by taking the note of William Cooper individually, and surrendering that of the testator, he had relinquished his claim on the executor. It will be time enough to pass on these questions when a case calling for their adjudication is made. What we do decide is, that the plaintiff, who seeks in a claim case to subject certain property to a judgment which he holds against one individually, can not, when it is shown that the individual has no title to the property which he seeks to subject, set up, by way of amendment to the issue thus raised, an equity to have such land subjected to the payment of a part of the debt represented by the judgment as the property of a testator whose representative is not bound in his representative character by such judgment. Such an amendment changes the issue entirely. The claim was interposed to test the question whether the land was subject to the judgment — whether the sheriff had a right to levy the execution on the land claimed and sell it for the debt. The amendment admits that the land is not subject to the judgment, but claims that the plaintiff is entitled to have it sold under another claim, as the property of some one else. As was said by Judge McCay, in Cox v. Cox, 48 Ga. 619, where the plaintiff in fi. fa. sought to enlarge the issue by a similar equitable amendment, “ this is an utter misconception of the claim laws.” In the case of Blandford & Thornton v. McGehee, 67 Ga. 84, this court held that an issue in a claim case could not be enlarged by an equitable plea to the effect that, while the judgment as rendered did not bind the property levied on, yet, as the services for which the judgment was ren [255] dered were for the benefit of the trust estate of which the property levied on was a part, such property ought to be subjected, notwithstanding the judgment was against the defendant in fi. fa. individually. In the decision of that case it was said that, “Liberal as the law is in the allowance of amendments to pleadings, we think this stretches beyond the letter or spirit of “the most liberal rule of pleading.” The court committed no' error in rejecting the offered amendment, nor in directing a verdict for the claimant; and the motion for a new trial was properly overruled. Judgment affirmed. All the Justices concurring, except Cobb, J., who was disqualified.