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Williams vs. Harkins.

last ruling thereon is the case of Akin vs. The Ordinary of Bartow, 54 Georgia Reports, 59 That case covers this.

Let the judgment be reversed.

55 172 59 127

JAMES A. WILLIAMS, plaintiff in error, vs. John HARKINS,

defendant in error.

1. The levy of an execution upon land by the sheriff, without more, was not

sufficient evidence of a breach of warranty to sustain an action in favor of the present owner of the property against his vendor on the covenant con

tained in the deed. 2. Land was conveyed by deed on March 26th, 1863, to which the vendor

only held a bond for titles. An execution against said vendor for the purchase money was levied on the same on November 29th, 1867, and a sale made on the first Tuesday in August, 1868. The defendant was adjudged a bankrupt on February 3d, 1868, and discharged on the 13th of the fol.

lowing October :
Held, that the vendee's claim on the covenant of warranty in the deed to him

existed prior to the bankruptcy of his vendor, and was therefore barred by
his discharge.
Warranty. Levy and sale.

Levy and sale. Bankrupt. Before Judge
UNDERWOOD. Floyd Superior Court. January Term, 1875.

Reported in the decision.

DABNEY & FOUCHE, for plaintiff in error.

WRIGHT & FEATHERSTON, for defendant.

WARNER, Chief Justice.

The plaintiff brought his action against the defendant for a breach of covenant of warranty of title to a tract of land described in his declaration. The defendant pleaded in bar of the plaintiff's action against him his discharge as a bankrupt, dated 13th October, 1868. On the trial of the case, the jury, under the charge of the court, found a verdict for the defend

A motion was made for a new trial, on the ground that the verdict was contrary to the evidence and without evidence

ant.

Williams vs. Harkins.

to support it, and for alleged error in the charge of the court, which motion was overruled, and the defendant excepted.

It appears from the evidence in the record that on the 26th of March, 1863, the defendant conveyed the land to the plaintiff by deed, with a covenant of warranty of title thereto. It also appears from the evidence that the defendant was adjudged a bankrupt on the 31 day of February, 1868, and obtained bis discharge on the 13th of October, 1868. The plaintiff offered in evidence two fi. fas. in favor of P. W. & William Printup against the defendant, issued on judgments obtained in January and July, 1866. It appears from the entry of the sheriff on one of the executions, that it was levied on the land as the property of the defendant, to pay the original purchase money due for said property by the defendant to plaintiff on the within fi. fa., which levy is dated 29th of November, 1867. It also appears, by the sheriff's entry on the fi. fa., that the above property was sold by him on the first Tuesday in August, 1868, and bid off by P. W. & William Printup, for the sum of $400 00. D. S. Printup testified that he was the agent of P. W. & William Printup, and held the notes of the defendant, Harkins, for the purchase money of said property, and tried to get him to pay them in 1862, the same being due at that time; that the fi. fas. io evidence were for the purchase money of the land; the defendant, Harkins, held P. W. & William Printup's bond for titles; never had a deed to the land. Jackson testified that he saw plaintiff pay defendant $1,000 00 for the land in 1863 or 1864. Plaintiff testified in his own behalf that he purchased the property in 1863; that defendant stated to him, at the time of the purchase, that his title to the land was good and perfect; that he paid $2,500 00 cash for it. The sheriff testified that the land was sold by him on the first Tuesday in January, 1868, and he made a deed therefor to P. W. & William Printup. The defendant testified in his own behalf, and stated that he told the plaintiff he had only a bond for titles, and had not paid all the purchase money due for the land, and proposed to transfer to him Printup's bond for titles, but

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plaintiff insisted on having a deed. At that time defendant was worth $20,000 00. The court charged the jury, "if the proof shows that the land was levied on by the sheriff to satisfy a fi. fa. for the purchase money on the 29th of November, 1867, I charge you that such levy was a seizure of the land by the sheriff, and there was from that date a breach of the warranty, and Williams' debt against Harkins, was provable in bankruptcy.”

1. In our juilgment this charge of the court was error. The levy of the fi. fa. on the land by the sheriff, without more, was not sufficient evidence of a breach of the covenant warranty of title contained in the defendant's deed.

2. But notwithstanding this error in the charge of the court the verdict was right under the evidence in the record. If the plaintiff has a cause of action against the defendant for a breach of the warranty of title contained in his deed, that cause of action existed prior to the 3d of February, 1868, when the defendant was adjudged a bankrupt, and inasmuch as the plaintiff's claim for that breach of warranty against the defendant existed prior to his having been adjudged a bankrupt, he should have proven it in the bankrupt court, and having failed to do that he is now barred by the bankrupt's discharge. There is no evidence in the record, with or without the charge of the court, which would have authorized the jury, under the law, to have found a different verdict than that which they did find.

Let the judgment of the court below be affirmed.

55 174 62 51 71 783 79 427 82 133

SARAH E. PULLEN, administratrix, plaintiff in error, vs. JOHN

G. WHITFIELD, defendant in error.

55 174 111 79

(BLECKLEY, Judge, having been of counsel, did not preside in this case.)

Where suit is brought jointly against the surviving partner and the adminis

tratrix of the deceased partner, and the plaintiff dismisses it as to the surviving partner, and there is no allegation that the partnership is insolvent,

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Pullen vs. Whitfield.

though the surviving partner has gone into bankruptcy individually, and there being no issuable defense filed on oath, the court entered up judg

ment against the administratrix alone, and these facts all appear of record : Held, that the judgment is illegal, and should be arrested, the motion being

made at the same term when the judgment was entered up, the administratrix having been absent from the state and having had no notice that the case had been dismissed as to her co-defendant,

Partnership. Joint obligors. Bankrupt. Pleadings. Judgments. Before Judge BUCHANAN. Troup Superior Court. November Term, 1874.

Reported in the opinion.
A. H. Cox; B. H. Hill & Son, for plaintiff in error.

SPEER & SPEER, for defendant.

JACKSON, Judge.

John G. Whitfield brought suit against Albert E. Cox, as surviving partner of the firm of Pullen & Cox, and against two administrators, and Mrs. Pullen, as administratrix of the other partner, Charles D. Pullen, deceased. The two administrators ceased to be parties—one having died and the other never having qualified. On motion of plaintiff, the case was. dismissed as to Cox, the surviving partner, because he had gone into bankruptcy, and at the same term of the court, judgment was entered up by the court against Mrs. Pullen, the administratrix, there being no issuable defense filed on oath. It appeared that Mrs. Pullen was absent from the state during all these proceedings, and had no notice thereof; and moved, by her counsel, afterwards, but at the same term of the court, to arrest the judgment, on the ground, substantially, that the suit was against partners on a joint partnership note; that Cox was the surviving partner, and that there was no allegation that the partnership was insolvent, and that all this appeared from the face of the pleadings. The court overruled the motion, and the defendant excepted.

The Code provides that the surviving partner has the right

Dowell et al. vs. Dickle & Company et al.

to control the assets of the firm, and that he is primarily liable for their debts : Code, sec. 1907. The statutes allowing the administrator of the deceased partner to be sued in the same action, codified in sections 3348 and 3343 of the Code, do not change this primary liability, so as to make legal a julgment against the representative of the deceased partner alone, unless it appear that the assets of the partnership have been exhausted, and some good reason exists for not embracing the surviving partner in the judgment. In this case there is no allegation that the partnership assets have been exhausted. It appears that the surviving partner had gone into bankruptcy, and was therefore dismissed from the suit by the plaintiff ; but it does not appear that he had been discharged as a bankrupt. Even if he had been so discharged, that discharge did not release the partnership assets, if there were any, from this debt. But he pleaded no discharge; the plaintiff voluntarily dismissed the suit as to him; and the court entered up judgment against the administratrix alone, thereby making the private property of the deceased partner primarily liable for the partnership debt. And all these facts appear of record; and we think that it thus appears of record that the judgment is illegal and should be arrested.

After the motion in arrest of the judgment had been overruled, a motion was made to set it aside on substantially the same grounds; but as the motion in arrest, under our view of the law, disposes of the case, it is unnecessary to consider the latter motion.

Judgment reversed.

John T. DOWELL et al., plaintiffs in error, vs. GEORGE A.

55 176 80 600

55 176 102 125

DICKLE & COMPANY et al., defendants in error.
A receiver was appointed at the instance of a mortgagee to take charge of the

mortgaged property, consisting of a stock of goods and books of account,
etc., representing such portion of the stock as had been sold since the date
of the mortgage. Whilst this litigation thus stood, judgments were recov-

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