Wheeler vs. Robinson.

bodily harm, and that they would take her gently by the arm and move her from the premises; and they did So. She did not consent to be moved, but no injury was done to her person. The defendant also moved her children and her furniture out of the house into a grove near by. She remained there with her effects for about three days and then moved back into the house, and has been there ever since. She first moved on the premises in January, 1873, and had been in the uninterrupted possession of them, claiming them as her own, up to the time of dispossession. She had made a contract for the purchase of the premises with the president of the board of trustees of the Orphans' Home some time in December, 1872, and in March, 1874, had taken the deed from her father-in-law.

The testimony for the defendant did not vary materially from that for the plaintiff, except that additional evidence was introduced as to the process under which he justified, which consisted of the following documents: A fi. fa. from the county court of Newton county in favor of Burge vs. Joseph Robinson, with many entries, among others an entry of levy on the property in question on August 27, 1876, and an entry of sale of the property to B. F. Veal and J. W. Scruggs on December 5, 1876; a deed from the sheriff of Gwinnett county, by whom the fi. fa. was levied, to Veal and Scruggs, conveying the property as sold to them; an application to the superior court of that county for a writ of possession as against J. E. Robinson, who was alleged to be in possession, with an order granting it; and the writ itself.

The jury found for the defendant. The plaintiff moved for a new trial on the following grounds:

(1)-(3) Because the verdict was contrary to law and evidence.

Wheeler vs. Robinson.

(4) Because the court erred in admitting in evidence the writ of possession.

(5) Because the court admitted the sheriff's deed.

(6) Because the court admitted the fi. fa. and entries thereon. The ground of objection to the admission of these papers is not stated.

(7) Because the court erred in charging the jury that, if they were satisfied that the plaintiff went into possession claiming title under Joseph Robinson, and that at that time there was an unsatisfied judgment subsisting against him, and subsequently the fi. fa. based on that judgment was levied on the premises, and they were sold by the sheriff as the property of Robinson, and the writ of possession was subsequently issued from this court to put the purchasers in possession, and that the defendant was acting as sheriff in the execution of said writ, he was justified in removing the plaintiff; and they would find for the defendant.

(8) Because the court refused to charge that if the plaintiff went into possession of the premises in January, 1873, with a written contract for purchase made with the trustees of the Orphans' Home, and paid for the premises with her own money according to said contract, and remained in possession claiming the same from January, 1873, until September 29, 1880, this would give her a good title by prescription; and the sheriff was not justified in removing her as an assignee of Joseph Robinson under said judgment since the date of said judgment.

(9) Because the court refused to charge that, as to her separate estate, whether living separate or apart from her husband, a married woman is, in legal effect, a feme sole with all the rights and privileges of a feme sole:

(10) Because the court refused to charge that the court would take judicial cognizance of the fact that the

v 81-20

Parrott vs. Nesbitt et al.

sheriff's deed was not good as a muniment of title and would not support an action of ejectment, and consequently the writ was not such a process as would justify the sheriff in the action laid in the declaration.

The court approved the grounds of the motion, with the following explanation: The court covered the points indicated by the grounds 7 and 8 in the general charge, and the language used in those grounds is substantially correct; the substance of what is contained in ground 9 was charged, and there was no written request to charge what is contained in it.

A new trial was granted on the ground that, under the facts, the officer exceeded his authority in dispossessing the plaintiff under the writ of possession against J. E. Robinson. To this ruling the sheriff' excepted.

S. J. WINN & SON, for plaintiff in error.

GEORGE S. THOMAS, contra.

BLANDFORD, Justice.

The court in this case granted a new trial, for what reason is not clear to us from the record; but he having tried the case and being satisfied that there ought to be a new trial, we are not disposed to scrutinize the case closely to find error in his judgment; and we affirm the judgment granting the new trial

Judgment affirmed.

PARROTT VS. NESBITT et al.

There was error, under the facts of the case, in the award of the fund

in the hands of the sheriff.

May 14, 1888.

Parrott vs. Nesbitt et al.

Money rule. Before Judge FAIN.

Before Judge FAIN. Gordon superior

court. August term, 1887.

Reported in the decision.

R. J. MCCAMY, W. J. CANTRELL & SON and O. N. STARR, for plaintiff in error.

W. R. RANKIN, DABNEY & FOUCHE and E. J. KIKER,

contra.

BLANDFORD, Justice.

This was a rule brought by Willingham against the sheriff, to distribute a certain fund in the sheriff's hands, to wit, the sum of $1,125, arising from the sale of certain lands as the estate of William A. Nesbitt, under a fi. fa. in favor of Willingham. The sheriff answered that this fund was claimed by divers executions of older date than that of Willingham, to wit: an execution in favor of one Cullins against William A. Nesbitt, principal, and R. H. Nesbitt, security, on appeal bond; an execution in favor of Young, Jackson & Co. vs. William A Nesbitt, which had been transferred to R. H. Nesbitt ; and an execution in favor of Mrs. Parrott, adm'x, vs. R. H. Nesbitt, adm'r. The Cullins execution was the oldest; the next in order of date being the Young, Jackson & Co. execution and the Parrott execution.

The matter was left to the court, without the intervention of a jury, and the court adjudged that the fund, after the payment of certain costs and attorneys' fees, be paid to R. H. Nesbitt, "to be applied first" to the Cullins fi. fa. To this Mrs. Parrott excepted.

It appears from the evidence that, in 1868, R. H. Nesbitt bought from his brother, William A. Nesbitt, a certain tract of land, and paid the purchase money therefor upon the Cullins execution, taking a transfer of that ex

Mayer vs. Hover.

cution to himself. A balance still remained due and unpaid on the execution. In 1873, certain lands belonging to William A. Nesbitt were sold by the sheriff, under the Young, Jackson & Co. execution; and a rule was brought against the sheriff to distribute the fund arising therefrom; to which the sheriff' answered that the fund was claimed by the Cullins execution; but no final order of the court distributing the fund was ever made. Afterwards, other lands belonging to William A. Nesbitt were sold by the sheriff. If the amounts arising from these sales had been placed upon the Cullins execution, they would have more than extinguished it, and would have left something to go upon the Young, Jackson & Co. execution.

We think that, under the facts of this case, the court erred in ordering the fund in the hands of the sheriff in this case to be paid on the Cullins execution; and upon that ground, and without saying what is due on these other executions, we reverse the judgment of the court below.

Judgment reversed.

MAYER VS. HOVER.

To an action of ejectment brought by David W. Mayer against Lemuel L. Hover, the defendant filed the following special plea: That the premises sued for were a portion of the property devised by John Hover to John F. W. Hover, it being provided by the will of John Hover that if the said John F. W. should die unmarried and without children or the representatives of children, before arriving at the age of twenty-one years, the property should be divided between the children of defendant and Mary A. C. Mayer, share and share alike; that the will was duly probated by defendant, nominated as one of the executors, and who duly qualified as such; that John F. W. Hover died before arriving at the age of twenty-one years, unmarried and without children or the representatives of children; that at the time of his death, there were in life only one child of defendant, named Benjamin, and two children of Mary A. C. Mayer; that