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Anderson vs. Walton.

facts alleged in the bill of Walton, and sworn to, could withhold his injunction restraining the sale of the cotton by the plaintiff in error, though he was a purchaser for a valuable consideration, as the cotton was unquestionably affected by the judgment of Taliaferro, obtained in 1861.

Whether the defendant in error was a security or not for Mrs. Stinson, will doubtless arise hereafter, and be decided by proof. It is, however, so alleged in the bill, and the demurrer of plaintiff in error precludes him from denying it. If a security, and the facts alleged in his bill are true,—and the demurrer admits them to be true, we have not the slightest doubt that Walton was entitled to the aid of a Court of Equity in trying to save his property from sati-fying Taliaferro's execution, when Mrs. Stinson had property in the hands of Anderson, (she being insolvent) bound by the judgment of Taliaferro, and which ought to be applied to its discharge.

[3.] We think Judge Reese did not err in overruling the demurrer; holding, as we do, that the peculiar facts set forth in the bill for discovery, injunction and relief, entitled a security placed in the situation of Walton-and that without paying up Taliaferro's execution-to claim and have the restraining power of the Judge of the Superior Court, against the sale or removal of the cotton liable to and bound by the judgment of Taliaferro, so as to prevent a serious loss to him, there being no adequate remedy at law, and this too, notwithstanding the inaction of Taliaferro, from whatever supposed legal obstacle it may have proceeded.

[4.] The record shows that six pleas were filed by Anderson, none of which were sworn to. Four were ordered to stand for an answer, upon being sworn to; the other two were dismissed as embodying matter proper only to be considered by way of demurrer. The four pleas referred to, when examined, will be found to be what our Code denominates as Impure pleas, and must, in all case, be sworn to. Nor was there error in dismissing the other two pleas, for the reason assigned.

Judgment affirmed.

Mahone vs. Perkinson.

E. D. MAHONE, plaintiff in error, vs. T. D. PERKINSON, defendant in error.

A Court has power to amend its judgments and executions so as to make them conform to the verdicts upon which they are predicated.

Motion. In Cherokee Superior Court. Decided by Judge MILNER. November, 1866.

At September Term, 1863, of Cherokee Superior Court, a verdiet was rendered in favor of Perkinson, against Mahone, on an attachment sued out by the former against the latter and levied upon certain lands. Nothing had occurred to entitle the plaintiff in attachment to enter up a general judgment on said verdict. Nevertheless, he did enter such a judgment, and the Clerk issued thereon, against Mahone, a general fi. fa. This fi. fa. was levied upon the lands on which the attachment had been levied. The lands were sold by the Sheriff by virtue of said levy, and Perkinson became the purchaser. A large balance appearing still to be due on the fi. fa., it was subsequently levied on other property, real and personal.

Before this last levy was disposed of, to-wit, at the September Term, 1866, of Cherokee Superior Court, counsel for Mahone moved to set aside both the judgment and the fi. fa. Pending this motion, and at the same Term of the Court, counsel for Perkinson moved to amend the judgment.

By consent of parties both motions were heard by Judge MILNER, in November, 1866, who disposed of them together, overruling the motion to set aside the judgment, and ordering and adjudging that the plaintiff have leave to amend the judgment by changing the same from a general judgment in personam to a judgment in rem upon the property on which the attachment was levied; and that the fi. fa be annuled and set aside, and a new fi. fa issued in conformity to the judgment as amended.

Mahone assigns for error the refusal to set aside the judgment, and the granting of leave to amend it.

Wynne vs. Lumpkin, et. al.

LESTER, for plaintiff in error.

HANSELL and BLECKLEY; for defendant.

WALKER, J.

The judgment in this case is affirmed, for the reasons that the judgment was incorrectly entered up, Code, sec. 3241; and the Court had the power, and it was his duty, to amend the judgment and execution, so as to make them ⚫ conform to the legal effect of the verdict. Sections 3424-5.

GLENN O. WYNNE, plaintiff in error, vs. R. H. LUMPKIN, and others, defendants in error.

[1.] Generally, the county of a person's residence is the one in which to locate à sult against him in Equity. Where, however, there are several defendants, and substantial relief is prayed against all of them, the suit may be brought where any one of them re-ides. Thus, where a bill charges a trustee with making a fraudulent sale o lands, and both the vendee and the tenant of the vendee are sued with him, relief being prayed against them all, the Court in the county of the tenant's residence has jurisdiction of the whole cause, and of all the parties.

[2.] Equity will cancel an illegal deed that forms a cloud upon the true title.

[8] The bill, in this case, was not multifarious. All the defendants were proper parties, and there was but a single subject matter.

In Equity. In Oglethorpe Superior Court. Decided by Judge Hook. April Term, 1866.

Demurrer.

By the will of John Wynne, dated in 1856, certain property, including a tract of land in Oglethorpe county, was left to his wife for life," and after her death, such as may be then in her possession, and not previously sold or disposed of by her, to be divided" among his sons Thomas, Glenn, and George, his granddaughter Susannah Stevens, and the

Wynne vs. Lumpkin, et al.

two children of his deceased son William, the last to take per stirpes.

The share of Thomas was to vest in the said Glenn in trust, for the support and maintenance of Thomas and his children, free from the contracts, liabilities and control of Thomas, and at his death to be equally divided among his children then living, and the representatives of any that might be deceased, such representatives to take per stirpes.

The will was admitted to probate; the executors qualified, and afterwards obtained letters of dismission. The testator's son George died without issue. Subsequently, the tenant for life died, leaving the tract of land undisposed of. Letters of administration de bonis non, with the will annexed, were granted to the testator's son Glenn, who is a resident of Coweta county. In 1864, Patrick M. Stevens, (the father of Susannah, the testator's granddaughter,) Sarah F. Wynne, (the mother of the two children of the testator's deceased son William,) and Thomas Wynne, the testator's son, all residents of Oglethorpe county, combining to aid and abet the said administrator in illegally selling said land, obligated themselves in a bond to hold him harmless, should he make such sale without proper authority from the proper Court. The administrator then, without said authority, sold and conveyed the land, for spurious money, which soon afterwards became utterly worthless, to John G. Crane, then and now of the State of South Carolina, who purchased with notice that the sale was unauthorized by the will of the testator or the laws of Georgia, and who was in collusion with the administrator and the parties to the aforesaid bond, to misapply the assets of the testator's estate, and defeat the interest of Thomas Wynne's children, William Wynne's children, and the said Susannah Stevens, therein.

Under the said deed of conveyance to him, and with the consent, and by the procurement, of the administrator and the other three confederates, the said Crane went into possession of the land, and placed thereon, as tenant under him, one William R. Perteet, who still resides thereon, and who,

Wynne vs, Lumpkin. et. al.

by his engagement with Crane, his landlord, will pay the rents and profits to him, and they will thus pass beyond the limits of this State.

A daughter of Thomas Wynne intermarried with Robert H. Lumpkin. The other children of Thomas, as well as the two children of William Wynne, deceased, and also the testator's granddaughter, Susannah Stevens, are all minors.

The present bill was filed by Lumpkin and wife, and by Lumpkin as the next friend of all of said minors, against Glenn Wynne. Thomas Wynne, Patrick M. Stevens, Sarah F. Wynne, John G. Crane, and William R. Perteet, alleging the foregoing facts; and, moreover, that the complainants know not whether those of the defendants residing in Georgia are solvent, but believe that the late emancipation of slaves has so damaged the estate of each that by reason of their many outstanding liabilities, the complainants will be benefitted by no decree except such as may be enforced upon the said land, and the rents and profits thereof, three-fourths of which the complainants claim as their property.

The bill prayed:

1. That Perteet, the tenant, be enjoined from paying over to Crane the rents and profits; that a receiver be appointed to take and hold the same, and to rent out the land, collect the rents, &c., until a final decree.

2. That the sale to Crane be rescinded and declared null and void, and the deed to him be cancelled; or, if good to convey the interest of Glenn and Thomas Wynne in said laud, and its total cancellation would be injurious to Crane, that then the deed be declared null as to complainants' interest, and Crane be perpetually enjoined from claiming such interest under the same.

3. That the defendants account for the rents and profits accruing since the sale.

4. That the land be partitioned into four parts, and one of them assigned to Thomas Wynne and his children, subject to the provisions of the will, one to the two children of William Wynne, deceased, and one to Susannah Stevens.

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