Urquhart v. Leverett

Hall, Justice.

1. The objection to the admission of the exemplification from the bankrupt court was properly overruled by the court below, in that it was a general objection and did not specify any ground so as to make any point or issue for adjudication.

2. The exemplification from the District Court of the United States for the Northern District of Georgia, showing that an injunction granted by that court staying a levy upon the property of John W. Wyatt, bankrupt, had been dissolved, was properly rejected because it did not identify the property levied on nor by what process the levy had been made.

3. The court did not err in refusing to charge as requested by counsel for plaintiff in execution “ that in determining whether Leverett (the claimant) had notice of the judgment they should inquire whether there were any such circumstances in existence, and known to Leverett, which would put a prudent man upon inquiry; that if Leverett made no inquiry as to whether there were any liens or judgments against J. W. Wyatt; if it appear that he became security, on a claim bond to a claim filed to land levied on by this fi. fa., these and all such circumstances are to be considered by the jury. That in determining whether Leverett has been in possession four years, they should not consider the possession of the purchaser from Leverett.”

To entitle the plaintiff to the charge as requested, the entire charge should have stated the law correctly. If a part be good and a part bad, the court is not required to separate and distinguish between what is sound and what is unsound. In view of the facts of this case, the latter portion of this case was obviously incorrect. The purchaser from Leverett held possession under a contract from him which had not been performed, and which she was not entitled to have performed until she complied with the conditions of his bond to make her titles. Her possession was therefore his possession.

4. Among other grounds taken in the motion for a new trial were the following: That the verdict is contrary to law and evidence, and without evidence to support it; that it is decidedly and strongly against the weight of evidence, and is against the principles' of justice and equity.

It appears from the entries upon this execution that it was levied on seventeen hundred and twenty-five acres of land, in Jasper county, by the sheriff of that county, as the property of John W. Wyatt, on the 25th day of January, 1869, and from the evidence of a witness in the case, which was undisputed and uncontradicted, that this was all the laud then owned by John W. Wyatt, and included that portion of the same involved in this litigation. It is also further shown that, while this levy was pending and undisposed of, the defendant, John W. Wyatt, filed his petition in bankruptcy, and that prior thereto, on the 19th day of July, 1873, he conveyed this land to Messrs. Key & Preston, his attorneys at law, to institute and carry through these proceedings in bankruptcy, and to enable him to obtain means to procure his discharge. Key sold his interests in the land to Preston, and Preston sold to the present claimant.

Although this transaction was returned in the bankrupt’s schedule, the matter never went into the court of bankruptcy. It was in the hands of the sheriff of Jasper county at that time, and no proceeding was ever taken by the bankrupt court, so far as the record in this case shows, to divest him of his right or control over it. Where a levy has been made before the commencement of pro-, ceedings in bankruptcy, the possession and legal title is in the officer making the levy, for the purpose of satisfying the process in his hands, and he, as trustee, has the right to go on and sell the property, unless a sale would be injurious to the general creditors, or to some one having a prior lien. Bump on Bankruptcy, 10th ed., 217. Where property is levied on by a sheriff, under an execution from a state court, and the defendant is adjudged a bankrupt, and no proceedings are taken in the bankruptcy court to compel the property levied on to be brought into that tribunal for distribution, the. adjudication of bankruptcy and the issuing of the ordinary writ of protection is no excuse to the sheriff for not proceeding to sell the property and raise the money. 40 Ga., 257. Where property was levied on before the defendant in the execution filed his petition in bankruptcy, but was sold after he was adjudged a bankrupt, it was held to be a good sale, and divested the title of the bankrupt; that no title to the property was vested in the assignee, and the purchaser at the "sheriff’s sale got a good title. 43 Ga., 383. How far this doctrine is applicable to a mere judgment lien, where there has been no levy, we do not decide. See Bump on Bankruptcy, ut supra. For the reasons above given, this verdict is contrary to law, and a new trial should have been granted upon that ground. We do not decide that a bankrupt may not appropriate a part of his effects to defray the expenses of the proceeding in bankruptcy, including costs and counsel fees, but we do hold that he cannot take property for that purpose which is in the hands of the sheriff under levy.

5. Upon the question of notice of the existence of this judgment prior to and at the time of the purchase by this claimant, we are of opinion that this verdict is so decidedly and strongly against the weight of evidence, and is sustained by such slight evidence, that it should have been set aside and a new trial granted. True, this claimant swears that he never had any notice of this judgment and ft. fa. being against John W. Wyatt when he bought the land. But what follows shows that he did not comprehend the legal import of the term notice; on cross-examination he testified that when he bought the land he made no inquiry for judgments against John W. Wyatt, but relied, solely on the warranty contained in Preston’s deed, although he knew that Wyatt had gone into bankruptcy, that Key & Preston represented him. Add to this that he was closely connected with these parties, that he was brother-in-law to Wyatt, father-in-law to Preston, father of Frank Wyatt, whose wife is a daughter of John W. Wyatt. Remembered that the Hubbard place, which was shown to be a part of the land included in the original levy of this fi. fa., was levied on some years ago; knew that it was claimed by the wife of Frank Leverett; that the case was pending some time in court; knew that it was decided against the claim ; that the land was sold at sheriff’s sale ; may have been present in court when case was called and tried or when land was sold ; can’t recollect; paid no attention to it; thinks he signed claim bond for his son Frank, who acted as agent for his wife in claiming Hubbard place; has no recollection of reading the bond but merely signed it; he also signed claim bond with his son in case of Eunice Holland’s ji. fa., levied on the same land, but never knew of this fi.fct. until it was levied on the land now claimed by him. Here are various circumstances, almost any one of which would have put a reasonably prudent man upon notice, but combined, it seems to us that they were sufficient to arouse the most unsuspecting who desired fair dealing between man and man to investigation and inquiry. Key & Preston, it is admitted, had notice; it is immaterial whether Mrs. Freeman, the party who has been in possession of the land since claimant’s purchase, had notice or not; we have shown that her possession was claimant’s possession ; that claimant had notice' from the circumstances above set forth, or might have had notice if he had shown the least diligence in investigating the facts which he testifies came to his knowledge, is equally certain. The notice with which these circumstances charge him was actual notice. In the language of this court, notice is actual “ when the proof, positive or presunsptive, authorizes the clear and satisfactory conclusion that the purchaser had knowledge of the incumbrance, or would have had it if he had not wilfully declined to search for it.” 14 Ga., 145, 158.

The only explanation offered for this failure to make this investigation, was his reliance upon Preston’s warranty of title to him. This, to our mind, is no explanation at all, but rather a manifestation of indifference’ to the consequences of the failure ; it is as much as to declare that he need not take the trouble to inquire; he is at all events, safe; his warranty is his protection.

Judgment reversed.