Jones vs. Killebrew.

fined, and capable, as they thought, of easy ascertainment by the application of the simple rules of construction applicable to all law? So, I think, the words, the context, the subject matter, all refer to the limitation on the life of a judgment, and make seven years the time within which this remedy by motion to set aside may be applied.

How is it in respect to the effects and consequences of the two constructions? That for which I contend makes the rule uniform and simple. The effect and consequence of the construction is one limitation, one period, within which all judgments, if illegal on their face, may be set aside on motion. The uniformity and equality, and certainty and clearness of the rule, if the statute be so construed, do commend it to my judgment. Put the other construction upon it, and what then? Into what a wilderness will we plunge, and did the legislature mean to put us there? Not only is there no solid rule of construction on which to rest the idea, that if the judgment be founded on a bond or sealed instrument, a motion is in order to set it aside for twenty years, if on a note, six years, if on open account, four years, if on trespass to the person, two years, if on libel or slander, one year, but in what labarinths of confusion will it involve the law? And if to these intricacies be added all the disabilities before the cause of action accrued, and after it accrued, in the cases of married women, infants, insane persons, persons imprisoned, defendants out of the limits of the state, joint actions, some of the parties barred and others not barred, discovery of fraud, set-offs, how impenetrable will be the thickets, and impossible our extrication from them! Can it be possible that the general assembly designed to make a rule that would work such confusion, and ought such a construction to be put upon their act? But not only do the words, the context, the subject matter, and the effects and consequences demand the construction we put upon these words, but the reason and spirit of the act equally require it. If the judgment be dormant, asleep, dead, there is no use nor sense in setting it aside. It can be met when sued upon or sought to be revived, by plea, and

Jones vs. Killebrew.

strangled before it breathes again; but while it is awake and active, during the seven years of its life, the defendant is in constant danger of having execution to issue thereon and to be annoyed with levies upon his property. It is reasonable that within that period he may move to brush this illegal annoyance out of his path.

I am aware that I am now arguing this question as applicable to judgments for money. Within what period of time, did the general assembly intend that a motion must be made to set aside such a judgment? Clearly they had judgments for money in view when they enacted this section of our Code. Those are the more numerous and the more important judg ments. Within what time must a motion be made to set aside an illegal moneyed judgment under this section and within these words of limitation? If we were now considering such a judgment-a judgment for money-illegal on its face and a motion made to set it aside, I do not believe that there would be any two opinions about the meaning of these words, "within the statute of limitations." The universal conclusion would be, seven years is the meaning, for seven years is the limit of the life of a judgment.

The whole trouble grows out of the fact that we are considering a class of judgments which are not for money themselves, but which have vacated and annulled moneyed judgments; but I submit that the statute itself makes no distinction between different classes of judgments, but puts them all upon an equality, and sets the same limit upon all in respect to the time within which they may be set aside for illegality on their face. If that time be seven years in respect to a judgment for money, it is seven also in respect to all other judgments.

Again, in regard to the reason and spirit of the law, a judgment for money is a debt of record. It assumes a higher form of indebtedness. It has emerged into a new life. The sealed instrument, the contract in writing, the parol contract, the tort, have all dropped the cerements of the past and are born again. Each is a new being, clothed with a new body and totally dif

Green vs. Akers.

ferent and superior powers and functions; and whatever dignity, or lack of dignity, in respect to duration of existence, or any other quality, each had before this renewed life and changed estate, is now gone forever; and all of them are now equal in power, dignity and duration. "Let the dead past bury its dead." Let us not, by strained constructions to meet a fancied, or even a real, hardship, raise these dead bodies with all their buried differences, and thus involve the living in inextricable confusion. But let us give the words their natural meaning gathered from the old rules of construction, and apply the same term of seven years as the time within. which a motion may be made, under our Code, to set aside any or all for illegality appearing on their face.

2. But it is said that the parties in this case agreed that the judgment rendered at December term, 1868, be then and there ordered by the court, and that they are estopped by the agreement. We cannot so construe this agreement. It is clear to us that they agreed that the consideration of the cause of action was slave property; not that the judgment should be set aside and declared null and void forever. The latter was the judgment pronounced by the court, and predicated upon the agreement that the consideration of the suit was negro property Without passing, therefore, upon the legal effect such an agreement would have had, had it been made as contended ́ for, it is enough, in this case, to say that we can discover no such agreement in this record.

On the entire case, we conclude that there was no error in the court in setting aside the illegal judgment of 1868, and affirm the judgment.

Judgment affirmed.

ANNA F. GREEN, executrix, plaintiff in error, vs. C. F. AKERS, defendant in error.

1. Where the intention and object of parties in entering into a contract became material in a judicial investigation, it is incompetent for a witness to

Green vs. Akers.

testify as to the intention of the agreement. He may state what the contract was and the consideration therefor.

2. A mortgagee, in consideration that no further obstacle should be interposed to the enforcement of his lien, agreed to allow fifty acres of the land covered thereby to the son and attorney of the mortgagor. This tract was subsequently sold under execution, and the proceeds claimed both by the mortgagee and said son of the mortgagor.

Held, that upon the trial of the issue thus formed, it was competent for the mortgagee to show that the mortgagor had not complied with his agreement, but had renewed the litigation, thus defeating him in the collection of his claim.

Contracts. Evidence. Before Judge BUCHANAN. Troup Superior Court. May Term, 1874.

Reported in the decision.

SPEER & SPEER, for plaintiff in error.

No appearance for defendant.

WARNER, Chief Justice.

This case came before the court below on an issue formed between C. F. Akers and Fisk, as to who was entitled to the money in the sheriff's hand, arising from the sale of fifty acres of land, as the proprty of Samuel Akers.

court, found

On the trial of the issue, the jury, under the charge of the a verdict in favor of C. F. Akers. The case is brought here on a bill of exceptions, alleging error in the charge of the court to the jury, and to the admission and rejection of evidence offered at the trial.

It appears from the evidence in the record, that on the 5th of May, 1866, Samuel Akers executed a mortgage to F. M. Fisk on certain described lands, including the fifty acres, from the sale of which the money in controversy was raised, to secure the payment of certain promissory notes therein described. Pending the rule nisi for the foreclosure of the mortgage which was resisted by Samuel Akers, the defendant therein, he proposed through, his attorneys in writing, to the attorneys of the plaintiff, for the purpose of settling all the litigation

Green vs. Akers.

then pending between them, on the following terms, to-wit: "to allow Fisk to take a rule alsolute upon the mortgage made to him by Samuel Akers, allowing to Frank Akers (meaning the said C. F. Akers) fifty acres of land situated in the vicinity of LaGrange, Georgia, and that said Akers, (meaning Samuel Akers) will dismiss his action for words against F. G. Fisk, and the damage suit upon attachment against F. M. Fisk." This proposition in writing, was agreed to and signed by the attorneys of both parties on the 18th of November, 1868, C. F. Akers being one of them. C. F. Akers was allowed to testify over the objection of Fisk's attorneys, "that part of the consideration of the fifty acres of land in the foregoing agreement, was the giving up by him to F. M. Fisk's attorneys a $400 00 draft given by Fisk to his father on P. Pease, and that the intention of the agreement, was to allow him the use of the mortgage, or to assign him the lien of the mortgage on the fifty acres of land." To the admission of this testimony, the counsel for Fisk excepted.

Fisk then offered to prove that although Samuel Akers had dismissed his suits at the November term, 1868, that soon after the adjournment of the court, he renewed the litigation by claiming the land when levied on by the mortgage fi. fa., had obtained a homestead on it, and had sold the homestead to third parties. The testimony thus offered was ruled out by the court, and Fisk, by his counsel, excepted.

Fisk then offered to prove by the testimony of J. & D. N. Speer, two of the attorneys who signed the written proposal for settlement of the 18th of November, 1868, that it was the intention of the parties to that agreement that Fisk should be allowed to proceed to collect his money with the mortgage fi. fa. without any further litigation from Samuel Akers, and it was so agreed and understood at the time, and that this was the main consideration for releasing the fifty acres of land. This testimony, so offered, was also ruled out by the court, and Fisk, by his counsel, excepted.

1. It was competent for C. F. Akers to testify what was the agreement between the parties, and as to the consideration