Barber v. McAliley

The opinion of the Court was delivered by Willard, A. J. The action was trespass for the recovery of land purchased by the plaintiff under execution upon a judgment recovered against H. Macon, brought against a purchaser of the same land, under a partition between the distributees of H. Macon. The only question presented by the ease is, whether the sale under partition divested the lien of the judgment against the ancestor. The proposition that a title, made under a decree for partition among distributees, does not divest or impair the lien of a judgment against the ancestor of the distributees, must' be regarded as substantially settled by Moore vs. Wright (14 Rich. Eq., 132.) Title under such a decree can have no greater force and effect than that of the distributees out of which it was derived. The title of the distributees being subject to the lien of a judg [52] ment against th'eir ancestor, that derived through their partition must beso subject. The judgment creditor of the ancestor was not a party to the partition, and therefore could not be bound by the decree. Walton vs. Copeland (7 Johns. Ch., 140,) holds that the judgment creditor would not be a proper party to the partition. The second ground of appeal has no application to the case. The issue made by the pleadings, as appears by the brief, is simply as to the legal title to the land. If the defendant had an equity as affecting the plaintiff’s legal right, that was the proper subject of an equitable defense, under the Code, but cannot be considered under a general issue denying the plaintiff’s legal right to the land. In fact, the plaintiff’s case, so far as it involves grounds of equity, was presented in the suit of McAliley vs. Barber, ante, p. 45, and was decided under that case. We are bound to regard the present case as one involving merely the legal rights of the parties as they would be presented in the common law action of trespass to try title. Viewing the case in this light, there was no error in the directions given to the jury, inasmuch as the plaintiff’s verdict was a necessary consequence of an undisputed state of facts, leaving nothing for the jury to determine. The appeal should be dismissed without prejudice to the defendant in this cause in any course he may be advised as to the fund in Court. Moses, C. J., and Wright, A. J., concurred.