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Maund vs. Keating. tiff in error by L. L. Stanford, and for defendant, by James M. Mobley.

The facts will be found in the opinion.

W. A. LITTLE; E. H. WORRILL, for plaintiff in error.

WILLIS & WILLIS, for defendant.

BLECKLEY, Juilge.

John R. Keating filed his declaration of complaint vs. John C. Maund, to the March term, 1871, of Talbot superior court. The sheriff made the following entry on the original declaration :

“Served John C. Maund with a copy of the within process by leaving at his most notorious place of abode. March 3d, 1871.

H. HALL, Sheriff.At the March term, 1872, the plaintiff took judgment by default, and execution issued and was levied on the property of the defendant, who interposed an affidavit of illegality, alleging as his only ground, that he had never been served with a copy declaration and process according to law. At the March term, 1875, of Talbot superior court the plaintiff tendered issue on said affidavit and a jury was impanneled to try the issue. The original declaration, process and return of the sheriff were admitted in evidence.

The defendant then proposed and offered to prove by witnesses that he had not been served, and that the return made by the sheriff was not true, which testimony the court refuseil to admit.

The court then further ruled that there was no issue to submit to the jury ; that the return of the sheriff was conclusive between the parties, and that the defendant is estopped from denying the return and can only show its falsity in an action against the sheriff. The court then dismissed the affidavit of illegality.

Where a judgment debtor, after levy upon his property, alleges that he has not been served and has not appeared, affi

Maund vs. Keating.

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davit of illegality is his proper remedy. He can thus bring himself before the court, Code, section 3671, and have what he alleges tried, under the rules of evidence that apply to such an issue. One of these rules is that if there be an entry of service by the sheriff or other proper officer, the defendant may traverse it, if he does so within the prescribed time: Code, section 3310; 47 Georgia Reports, 320; 49 Ibid., 231. We think, for the sake of making a complete record, and showing on the face of the proceedings that the return has or has not been successfully attacked, that there should be a formal traverse of it in writing before any evidence is received to impeach it. We hold, moreover, that until thus traversed and falsified, the return is conclusive; provided the case be one in which, if actual service had in fact been made, there would have been no defect of jurisdiction in the court, either as to the person of the defendant or as to the subject matter of the suit. With such defect, the return, like the judgment of a court having no jurisdiction, would be open to attack at all times and in all places : 48 Georgia Reports, 491.

Whatever facts exist to show that the return need not be traversed, or that it is or has been traversed within due time, should be alleged by the defendant. Presumptions are against him where the return is regular on its face, and it is for him to make good his right to attack it. He should show that lie is not too late : 49 Georgia Reports, 231. In the case under review there was no traverse of the return. Evidence was offered against it without any pleading whatever to rest such evidence upon. The court was right in excluding it, and when excluded the return stood on the record uncontradicted ; and the court could and did try the issue of illegality by inspection. There was nothing for the jury; and the judgment dismissing the affidavit of illegality, though put upon too high a ground, was correct.

Judgment affirmed.

Ruker vs. Womack.

HENRY F. RUKER, plaintiff in error, vs. A. J. WOMACK, de

fendant in error.

55 399 56 595 58 196 66 729 72 850

55 399 103 455

55 399 106 106 186

55 339 110 319

1. The withdrawal of a first claim terminates that suit,
2. If the same claimant, in resistance to the same levy, interpose a second

claim, after he has parted with title to a purchaser, such purchaser will not
be bound by a judgment rendered on the second claim, subjecting the prop-
erty, even though he purchased pending the former claim. A privy in es-
tate is unaffected by a judgment adverse to his predecessor's title, if the
suit in which the judgment was rendered was commenced after the prede-

cessor had transmitted all his title. 3. The commencement of a claim case is not the levy, but the interposition

of the claim. 4. Although land sold by the defendant in fi. fa. to a bona fide purchaser for

value, be levied upon before the purchaser has held it for four years, and while it is subject to the judgment lien, yet, if the plaintiff neglect for the further term of four years to enforce the levy, when no obstruction is in the way of its enforcement, and during such four years the land be in possession of another bona fide purchaser for value, who holds under the first, it will be discharged from the lien. This case is within the letter of the Code, and is also within the equity and spirit of the statute as it stood prior to the adoption of the Code.

Claim. Judgments. Privies in estate. Lien. Vendor and purchaser. Before Judge KIDDOO. Clay Superior Court. March Term, 1875.

Reported in the opinion.

John T. CLARKE; John C. WELLS, for plaintiff in error.

H. & I. L. FIELDER; R. E. KENNON; S. A. McLENDON, for defendant.

BLECKLEY, Juilge.

The material facts may be understood from a kind of skeleton of dates and events. September, 1856, judgment in favor of creditor against his debtor; November, 1856, conveyance of land by the debtor to first claimant; January, 1859, levy on the land ; March 1st, 1859, first claim; March 17th, conveyance of the land by claimant to his surety on the

Ruker vs. Womack.

claim bond; September, 1859, claim withdrawn, and fi. fa. ordered to proceed; December, 1859, second claim interposed by the same claimant; November, 1863, conveyance of the land to second claimant from first claimant's vendee; March, 1869, final verdict against first claimant on his second claim, and order that the fi. fa. proceed; June, 1873, claim interposed by second claimant, who had been in possession of the premises ever since the date of the conveyance to him from the first claimant's vendee. The first claimant, his vendee, and the second claimant, all three, seem to have been purchasers for value; and there is no evidence in the record that either the first or the second claimant had any notice of the judgment at the time they respectively purchased. On the contrary, the record states expressly that the second claimant was an actual purchaser for value; and there is no hint that he knew anything of the judgment or the levy until the final trial of the first claimant's second claim, in 1869; at which trial he appeared as a witness in behalf of the first claimant, whether voluntarily or under the compulsion of a subpæna is not stated.

1. The first claimant's vendee bought pending the first claim, and was surety on the bond. He was, therefore, affected with notice of the judgment and the levy. It will be remembered, however, that this first claim was withdrawn; and, consequently, that no conclusive judgment was or could be rendered in that case. The statute (Code, section 3740) 'recognizes the right of a party to withdraw his claim if he has not exercised the right once already; and we hold that such withdrawal terminates that suit, and the order directing the fi. fa. to proceed is not a bar. The same claimant, if he retains the title, may claim again; or if he conveys the title, his vendee, or those holding under him, may interpose the second claim.

2. Here a second claim was interposed by the same claimant, but it was after he had parted with title. He conveyed the title to a purchaser in March, and in the following December, when he had no vestige of title, made the claim on

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Ruker vs. Womack.

which judgment was rendered against him pine or ten years afterwards. The state of the title at the time of levy (at all events, if the levy be upon land,) does not determine who ought to be claimant. What title the claimant himself may have had at the time of the levy, or at any other time prior to his assertion of title by interposing the claim, is not always important. He swears that the land is his, not that it was his. Whenever he ceases to be owner he ceases to be in a situation to 'institute his suit as claimant. Claim is not a remedy to prevent levy but to prevent sale. The levy is already made, and the claim is interposed to stop it from proceeding and to prevent its consummation by sale, delivery of possession, etc. There may be other actions, such as trespass, which can be commenced to redress an illegal levy when title has been parted with after the levy and before action brought, but claim is not an appropriate remedy if the claimant has no title when he comes forward to inaugurate litigation. If, as in this case, he does interpose a claim after his title is gone, of what effect can the judgment be in barring his privies who derived their title from or through him by prior conveyance ? Where the doctrine of lis pendens applies, privies are concluded by a final judgment on the merits in a case pending when they purchased; but there is, perhaps, no instance in the whole law where privies in estate are held affected by the result of litigation in a suit commenced by or against a predecessor in the title after he has transmitted all the title he ever had : 1 Greenleaf's Ev., section 536.

3. We hold that the commencement of a claim case is not the levy, but the interposition of the claim. Until then, the proceeding is wholly between the plaintiff and the defendant in fi. fa. The question of title in the claimant is made, not by the levy, but by the claim, and that is the lis to which the claimant is a party.

4. When the first claimánt interposed his second claim, the title, so far as it had ever been in him, was in his vendee. That vendee had purchased pending the first claim, but was · not barred from interposing a claim for himself, because the

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