Sims vs. Kidd et al. fendant to a third person for such surplus, it is no defense to a rule that an unforeclosed mortgage on the property sold, of older date than such order but junior to the executions, had been placed in the sheriff's hands on the day of sale. 2. But if the mortgagee be made a party to such rule, and sets up his equitable claim to the fund on account of the insolvency of the defendant, he has an equity to the money superior to that of the holder of the order. This was a rule against the sheriff on the following statement of facts: On the first Tuesday in July, 1875, the sheriff sold a tract of land under two common law fi. fas. as the property of W. H. Kidd, which was bid off by Sims for the sum of $805 00. After satisfying the two common law fi. fas., there remained in the sheriff's hands an excess of $183 00. The defendant, Kidd, on the 6th of July, 1875, gave to Olive an order on the sheriff to pay to him the excess arising from the sale of his prop: erty, after satisfying the two common law fi. fas., in payment of a claim which Olive had against Kidd. This order was in the sheriff's hands before the sale of the land. Sims, on the day of and before the sale, placed in the hands of the sheriff a mortgage on the land sold, of younger date than the judgments, made by Kidd, and which had been duly recorded, but which had not been foreclosed, and claimed that the $183 00 in the sheriff's hands should be paid to his mortgage. Sims, on motion, was made a party to the proceeding before the court, and set forth in writing the grounds of his equitable claim to the money in the hands of the sheriff, alleging that 55 628 112 443 Reynolds vs. Martin et al. Kidd was insolvent. The court ordered the money in the sheriff's hands to be paid to the defendant, Kidd, for the use of Olive; whereupon Sims excepted. The mortgage of Sims was dated on the 2d of June, 1875, and recorded on the 9th of June, 1875, and was of older date than Kidd's order to the sheriff to pay the money to Olive, and it was admitted that Kidd was insolvent. Whilst it was no sufficient answer for the sheriff to protect him from paying the money in his hands under the rule, that Sims had placed in his hands a mortgage against Kidd which had not been foreclosed, still Sims had the right to come before the court and be made a party to the proceeding for the purpose of asserting his equitable claim to the money arising from the sale of Kidd's land, on which he had a mortgage, as against the claim of Kidd to the money or his assignee, Kidd being insolvent, and the question was, who had the superior equity to the $183 00 in the sheriff's hands, arising from the sale of Kidd's land, Kidd or his assignee, Olive, or Sims who had a duly recorded mortgage on the land? In our judgment, Sims had the snperior equitable claim to have had the money in the sheriff's hands applied to his mortgage, unless it could have been shown by the other contesting party that the mortgage had been satisfied, or for some other reason, that it was not a valid, subsisting mortgage. On the statement of facts disclosed in the record, we reverse the judgment of the court below. Judgment reversed. SHARP S. REYNOLDS, plaintiff in error, vs. P. R. MARTIN et al., executors, defendants in error. 1. When the auditor's report finds simply a balance due, as in this case, $114 00, and does not specify the result reached by him on any issue either of law or fact submitted for his investigation and made by the pleadings, the report is too vague and indefinite; no exceptions can be made intelligently thereto; nor can the court well determine whether the auditor erred Reynolds vs. Martin et al. in law, or the jury review with facility his finding on any issue of fact. In such case, the report should be remanded to the auditor for want of fullness and certainty. 2. It is not error to refuse to continue a cause arising on exceptions to an auditior's report on the ground of time to procure the attendance of witnesses, when the exceptions are purely matters of law, and all the facts necessary to determine them may be found in the record and the report. Continuance. Equity. Practice in the Superior Court. Auditor. Before Judge RICE. Hall Superior Court. September Term, 1875. Reported in the opinion. ESTES & BOYD, for plaintiff in error. J. F. LANGSTON, for defendants. JACKSON, Judge. 1. The auditor's report in this case exhibited no facts, nor did it show his decision on any point of law submitted by the bill and answer. Points of law and issues of fact, such as the right of the respective parties to commissions and the title to certain property, the contest being between legatees and co-executors, were made in the pleadings, and the report is nothing but a verdict that one party recover of the other so much money. The auditor should have reported specifically his finding on the facts, on each issue litigated before him, and his ruling upon the law on issues of law made. This is the result which the Code, section 3137, construed in connection with sections 3138, 3139, 3140, 3097, 4202, 4203, 4204, means. In this case, exceptions were filed for want of fullness and certainty, and were overruled by the court below. We think that it erred therein, and that it should have remanded the report to the auditor for specifications of his rulings on the law and findings on the evidence upon the issues submitted under the pleadings. In no other way could exceptions on law and fact to the conclusions of his report be intelligently framed or adjudicated by the court and jury. We reverse the judgment on this ground. Grubb vs. Kolb et al. 2. The motion for a continuance was properly overruled. The record and the report furnished all the evidence necessary to pass upon the exceptions, and there was no necessity for witnesses. The application for a continuance was not based upon want of time to frame exceptions, but for want of time to prove them by testimony, and no testimony being necessary for the purpose except that in court, of course the continuance was properly refused. But as we hold that the report should have been remanded for want of certainty and fullness, we reverse the judgment. Judgment reversed. ELIZABETH GRUBB, administratrix, plaintiff in error, vs. (BLECKLEY, Judge, having been of counsel in this case, did not preside.) If a complainant in equity has been before a competent tribunal at law, which has given judgment against him, that judgment, unless reversed, is conclusive upon him in the other forum as to matters of defense which he might have presented at the proper time. Equity. Judgments. Before Judge HOPKINS. Fulton county. At Chambers. June 15th, 1875. Reported in the decision. R. H. CLARK, for plaintiff in error. A. W. HAMMOND & SON, for defendants. WARNER, Chif Justice. This was a bill filed by the complainant against the defendants, to recover the possession of a certain described city lot, in the city of Atlanta, or asking that the same might be sold for her benefit, on the terms and conditions as therein prayed for. The defendants demurred to the complainant's bill, includin Grubb vs. Kolb et al. the exhibits thereto attached as a part thereof, for want of equity. The court sustained the demurrer, and the defendant excepted. It appears from the complainant's bill and exhibits, that the defendants therein brought an action of ejectment against the complainant to recover the possession of the same lot of land, in January, 1852, and obtained a judgment therefor in 1867. In February, 1871, the complainant was turned out of possession of the lot under that judgment, and Kolb, one of the defendants, was put in possession thereof. On that trial in the common law court, the complainant claimed the right to the possession of the lot, under a bond for title from Cone, contending that all the purchase money for the lot had been paid. The evidence as to that fact was conflicting, and the jury found for the plaintiffs in that suit, now defendants in the present bill. The equity which the complainant now seeks to assert, is, that inasmuch as a part of the purchase money was due for the land, that was an equitable defense that she was not bound to have made on the former trial in the common law court, and therefore she is not concluded by that common law judgment, but may now assert her right to recover the lot in a court of equity. Before the adoption of the Code the general rule was well established that a court of equity would interfere to set aside the judgment of a court having jurisdiction, only where the party had a good defense of which he was entirely ignorant, or where he was prevented from making it by fraud or accident, or the act of the adverse party, unmixed with fraud or negligence on his part. In Kenan & Rockwell vs. Miller, 2 Kelly's Reports, 325, it was held that "if a complainant in equity has been before a competent tribunal at law, which has given judgment against him, that judgment, unless reversed, is conclusive upon him in the other forum, even as to matters of defense which he might have presented, but neglected to introduce at the proper time; and that, too, notwithstanding the decision disallowing his plea was erroneous." See, also, Bostwick vs. Perkins, 1 Kelly's Reports, 136; Stroup vs. Sullivan & Black, 2 Ibid., |