Allen et al. vs. Sharp, guardian. BERNER & TURNER, by H. C. PEEPLES, for plaintiffs in error. R. P. TRIPPE, for defendant. CRAWFORD, Justice. This contest arises upon a rule to distribute the money raised from the sale of a house and lot, sold as the property of S. H. Stone, trustee of his wife, Julia A. Stone. There are three contestants with three fi. fas., and each one claims to have the highest equitable right to the fund. The first is Sharp, guardian of Dillard, who alleges that the consideration of his debt was the purchase money due upon the house and lot sold. The second is Allen et al., his co-plaintiffs, who also allege that their fi fa. was for the purchase money paid upon the house and lot; The third is Willingham & Dunn, who allege that their fi. fa. was for building material used in the improvement of the said house and lot. The Sharp judgment is dated August 26th, 1875, is rendered against Stone, trustee, and to be out of the house and lot named in the note, which note recites, as consideration, five hundred dollars for purchase money of house and lot in the town of Forsyth. The Allen judgment bears date August, 1877, was rendered upon an award of arbitrators, the submission bearing date September 1st, 1876; the award, November 3d, 1876, and which provided that if the parties failed to perform the judgment of the arbitrators, an order might be obtained from the judge of the superior court in term or vacation to compel the enforcement of the same against this house and lot. The Willingham & Dunn fi. fa. was rendered April 22d, 1876, and against the house and lot of Stone, trustee, for Allen et al. vs. Sharp, guardian. building material used for the improvement of the same. Thus stood the parties before the court below upon the new trial which was granted by this court at its February term, 1879. Upon the first trial the money now contended for was ordered paid over to the Sharp fi. fa., which was excepted to, because the contestants insisted, that although it was of older date, yet theirs were issued on judgments rendered against the trust property and sold according to $3377, 3382 of the Code, whilst the Sharp judgment was not so issued, and was, therefore, void. In reply, Sharp claimed the money upon the ground that his fi. fa. was founded on a lien against the property sold, for the purchase money due thereon, as provided by 83654 of the Code. This court held that there was nothing in his-Sharp's pleadings or judgment, which sufficiently identified the property to justify his claim to the money. It was further held, that his judgment was a valid one, and if the facts were that the money was raised from the house and lot on which the purchase money was due, and for which the judgment was rendered, then it was equitably entitled to the money, notwithstanding that specific house and lot was not described and set forth in the judgment. Upon the new trial, the jury again found in favor of the Sharp fi. fa., he having amended his pleadings so as to conform to the ruling of this court when the case was here before, and again the contestants except. The case as now presented by the record shows a fund in the hands of the sheriff of some $500.00, raised from the sale of a house and lot as the property of S. H. Stone, trustee, under fi. fas. in favor of Sharp and Willingham & Dunn, the latter of which is against the specific property sold, the former against the defendant, and claimed to be against the specific property for purchase money. The right of Willingham & Dunn, therefore, to the payment of their execution is secondary to that of Sharp, if his debt be either for the purchase money, or his judg Allen et al. vs. Sharp, guardian. ment prior in point of time and against the property sold. Touching the fi. fa. of Sharp, it is by no means clear to us that the debt due by Stone to Sterne was a bona fide debt for the purchase money of this house and lot, and it is less so, that the debt from Stone to Sharp was, when viewed in the light of the whole proof, though we do not decide the legal effect of the new contract between Sharp and Stone in their relations of vendor and vendee. As to the fi. fa. of Allen et al., it appears to us that it is immaterial whether that is regular or even illegal, so long as it is admitted by counsel for Sharp, that it arose upon a debt for borrowed money with which to make the first payment for the house and lot, and that a deed to the same of older date than the one from Sterne to Sharp had been executed by Stone to Allen et al., to indemnify them against loss. If, therefore, all the testimony be accepted as true, both these last fi. fas. were founded on the consideration of purchase money, and were their status in other respects the same, then their equities to the fund would be equal. But it will be seen that Sharp reduced his debt to judgment in August, 1875, and conceding that Allen's was all legal and right, it is two years the junior of the other, and must in a contest over money raised by the sale of defendant's property yield to its senior adversary. This is not only the rule in cases of strict law, but in equitable proceedings as well, because equity is ancillary, not antagonistic to law. Where equities are equal, the law will prevail; if they are unequal the superior must prevail, and superior diligence as to time will create such inequality. Code, 3083, 3087; 3 Kelly, 460. Thus with the testimony identifying this house and lot as the one against which the Sharp judgment was rendered, and which did not appear in the former adjudication of this case by this court, it would be entitled to the money raised from the sale. If the testimony be in Stodghill vs. The State. sufficient to identify it, then the money having been raised by a sale of the property under the specific judg ment of Willingham & Dunn, and the judgment of Sharp against the defendant, when brought into court, unless the specific judgment had a higher lien, which does not appear, then the oldest judgment attached to the fund and was entitled thereto. Or if it be true that the money borrowed from Walker was used to make the first payment, as insisted by Allen et al., and Stone only had Sharp's bond for titles, and their relations were those of vendor and vendee, a partial payment of the purchase money thus having been paid, brought the Sharp fi. fa within $3586 of the Code, and entitled it to the money. We think, therefore, that the court committed no error in refusing a new trial. Judgment affirmed. STODGHILL vs. THE STATE OF GEORGIA. The verdict was not contrary to law or the evidence, and a new trial is refused, even though the solicitor general stated that he thought the ends of justice might be better accomplished by the grant of a new trial. Criminal law. New trial. Before Judge SPEER. Butts Superior Court. March Term, 1880. Reported in the decision. T. W. THURMOND; BECK & BEEKS; M. O. MCKIBBEN; H. C. PEEPLES, for plaintiff in error. F. D. DISMUKE, solicitor-general, for the state. HAWKINS, Justice. The defendant, Felix Stodghill, was tried and convicted of murder in killing one Theophilus Jones, with recom Stodghill vs. The State. mendation to mercy. He made a motion for a new trial in the court below, which was overruled, and he excepted. The grounds were that the evidence did not show that a homicide had been committed, or that defendant used a weapon likely to produce death, or that Jones was dead; that no malice was shown, and that the verdict was contrary to evidence, without evidence, and contrary to law. When the case was called in this court for argument, the solicitor-general of the circuit announced to the court that, from the circumstances of the case on the trial of the defendant in the court below, as well as the apparent mental condition of the defendant, the ends of justice. would be subserved by granting him a new trial by this court. He did not appear before the judge on the motion for new trial, as he thought the judge would grant the same. We have given the case a careful examination, with the desire to grant a new trial, on account of the high regard we have for the opinion of the state's officer, and his statement made in open court, and it is painful for us to make the decision refusing a new trial, but a sense of im perious duty compels us, in the administration of criminal justice, to decide in accordance with established principles in this as in all other cases. were The evidence shows that defendant and deceased w both colored men; were together, with two other men, pulling fodder in a field, when defendant used vulgar and obscene language to the deceased, who remarked that if you repeat that I will hit you with a rock. Defendant repeated the words and deceased stooped down as if to get a rock, when defendant struck him on the temple with a rock weighing one and three-fourths of a pound, from which Jones died in six or eight minutes. There were no rocks in that part of the field, and the rock used was what the witness called an iron rock, not known on the land where the homicide occurred. Defendant and deceased had been quarreling during the week before the killing. |