Ware et al. vs. Barlow.

concluded that two of these executors had a right to carry out the provisions of the will? Would any court hold that he was guilty of such a fraud if he had read the will and decided that these executors had a right to sell this property, although it was not mentioned in the will? These propositions are not free from doubt. Judges who have spent the best years of their life in investigating questions of this sort differ about them. It seems from this record that two judges of the superior court have decided in this case that the two executors had a right to sell this particular piece of land. Suppose Barlow had decided it wrong and these two judges in the court below had decided it wrong, would that be such a fraud as to prevent the prescription from commencing to run in his favor? We think not. As the court said in Wright vs. Smith, supra, if every person must be satisfied of the legal title before he purchases, there would be no use of a statute of prescriptions. The very object of the statute is to protect persons in possession under a defective title.

2. This record further shows that this land was sold to Barlow in June, 1866, and that most of these parties had notice of the sale at that time and that some of them shared in the proceeds thereof; that Terhune and his wife had notice of it either in 1868 or 1869, and never commenced their action until 1883, seventeen years after this purchase was made, and fifteen years. after they all had notice. It seems to us that it would be a fraud to deprive this man of his land, under the facts disclosed by this record.

Counsel for the plaintiffs in error relied mainly on the case of Hunt et al. vs. Dunn et al., 74 Ga. 120. If the principle announced in that case is sound law (which I very much doubt), it is distinguishable from this case. The facts show, in that case, that the person under whom the defendant claimed bought the land with notice of

Moore, Marsh & Company et al. vs. Brown et al.

the superior outstanding title of James Lyle. That was a contest between two different titles. The defendant in that case had notice that the other title was superior to the one he bought; whereas in the case now under consideration, Barlow did not attempt to buy an outstanding title, but sought to purchase the only title that he knew of to this land, so far as appears from the record. What more could he have done? As said before, the record shows that he acted in the utmost good faith in this transaction. There is not a suspicion against him of any wrongful act or unfair dealing in the whole transaction. Nothing can be said against him except the fact that he made a mistake in deciding for himself, (supposing he had notice of the contents of the will,) that the executors had a right to sell this land. While the court might have left the matter of good faith to the jury, if he had done so they would have been obliged, under the evidence shown in this record, to find in his favor; and we will not send the case back to go through the form of submitting that question to them. Judgment affirmed.

MOORE, MARSH & COMPANY et al. vs. BROWN et al.

1. Where the sole counsel in attendance for the plaintiff in error is prevented by a sudden access of illness from being in the court-room when the case is called, and the writ of error is dismissed, it will be reinstated upon his motion made the same day, and will, if the cases of another circuit have been entered upon before the motion to reinstate is decided, be either continued or heard upon the briefs of counsel.

2. Though on a rule against the sheriff to which several creditors are parties, the losing creditors pray for relief from the sheriff beyond the amount of the fund admitted by him to be on hand, yet if he be no party to their motion for a new trial, and if the writ of error be founded alone upon a denial of that motion, he need not, under the act of 1881, be a party to the writ of error, nor be served with the bill of exceptions. As to him the verdict of the jury is final,

Moore, Marsh & Company et al. vs. Brown et al.

except as to paying out the fund, in respect to which he makes no contest.

3. Where the vital issue is fraud in certain mortgages, as the burden of proving fraud is upon attaching creditors who attack the mortgages, it seems that they would be entitled to open and conclude; but the question is not decided.

(a) The verdict being undoubtedly correct, and there being no suggestion of new evidence, the case will not be sent back for a new trial because the right to open and conclude was given to counsel for the mortgagees.

4. When counsel want every detail of the law applicable to the facts of the case gone over by the court, they should call attention to such minute matters. Unless they do so, the court may instruct in general terms on the broad and controlling principles, and there stop.

5. As a general rule, a person is not to be affected by what is said about his rights behind his back.

(a) Whether there was error in rejecting evidence of a conversation, cannot be determined when the import of the conversation does not appear in the record.

June 4, 1888.

Order of argu

Practice. Parties. Burden of proof. ment. Charge of court. Evidence. JOHN T. CLARKE. Terrell superior court. term, 1887.

Reported in the decision.

Before Judge

November

D. A. VASON, JAMES DODSON & SON and R. F. SIMMONS, for plaintiffs in error.

GUERRY & GRIGGS and C. B. WOOTEN, contra.

BLECKLEY, Chief Justice.

This case, being reached and called in its order in the forenoon, was dismissed for want of prosecution and for lack of service of the bill of exceptions on the sheriff. This lack of service was brought to the attention of the court by counsel for the defendants in error, and its bearing on the case was only slightly considered, no

cess.

Moore, Marsh & Company et al. vs. Brown et al.

counsel being in attendance for the plaintiffs in error. In the afternoon, Judge Vason moved to reinstate the case, and showed for cause that he was the sole counsel relied upon to represent the plaintiffs in error, that he had attended in the forenoon for that purpose, that before the case was reached and called and while out of the court-room, he was taken violently ill, and that owing to that fact and his being occupied in procuring and using remedies, he was unable to return to the room or to report his condition to the court before the noon reHe insisted that the sheriff was not a necessary party, and that by the act of 1881, (addenda to the code, page IX, §4272b,) service of the bill of exceptions. upon him was dispensed with. Counsel for the defendants in error was afterwards heard upon this motion, and the court on due consideration, being convinced that Judge Vason's absence was the result of providential cause, reinstated the case; and being also of the opinion that on the peculiar facts disclosed by the record, it falls within the act of 1881, cited above, and that service on the sheriff was not required, the court announced that the case would be either continued or heard on the briefs of counsel, as counsel for defendant in error might prefer. Oral argument would not be heard, because the cases of another circuit had been entered upon before the motion to reinstate was decided. Thereupon he filed his briefs, those for the plaintiffs in error having been already filed, and the court is now ready to dispose of the writ of error on its merits. The points of practice involved in the foregoing details may be thus summarized:

1. Where the sole counsel in attendance for the plaintiff in error is prevented by a sudden access of illness from being in the court-room when the case is called, and the writ of error is dismissed, it will be reinstated upon his motion made the same day, and will, if the cases of another circuit have been entered upon before

Moore, Marsh & Company et al. vs. Brown et al.

the motion to reinstate is decided, be either continued or heard upon the briefs of counsel.

2. Though on a rule against the sheriff, to which several creditors are parties, the losing creditors pray relief from the sheriff beyond the amount of the fund admitted by him to be on hand, yet if he be no party to their motion for a new trial, and if the writ of error be founded alone upon a denial of that motion, he need not, under the act of 1881, be a party to the writ of error nor be served with the bill of exceptions. As to him the verdict of the jury is final, except as to paying out the fund, in respect to which he makes no contest.

3. Passing on to the main case, we can discover no error committed by the court, unless it was in allowing counsel for the mortgage fi. fas. to open and conclude the argument. We are not quite sure as to this question, but are inclined to think that as the vital issue was fraud in the mortgages, and as the burden of proving fraud was on the attaching creditors, the attaching creditors were entitled to open and conclude. Johnson vs. Martin, 25 Ga. 269; McKibbon vs. Folds, 38 Ga. 239, and cases cited; Buchanan rs. McDonald, 40 Ga. 286; Loudon, vs. Coleman, 62 Ga. 147; Rules Practice Superior Court, No. 45. But the verdict of the jury was undoubtedly correct, and this being so, it would be idle to remand the case to have it argued over. There is no suggestion in the record of newly-discovered evidence, and were the case tried again on the same testimony, the order of argument would not or at least ought not to change the result.

4. We cannot hold that the charge of the court was error, or that it did not fully cover the case, or that a new trial ought to be granted for any of the failures to charge complained of. Had the court been requested to charge on the omitted topics, we may assume that the omissions would have been supplied. When counsel