DOE V. AIKEN.
Procedure as authorizing, in some way, a several judgment in this action between him and the plaintiffs on the subject of this counter-claim. But the section has no bearing on the subject. It simply gives the plaiutiff, with the consent of the court, the right in an action against joint debtors, when only a part of the defendants are served, to take judgment against all, to be enforced, however, as to the absent defendants, only against the joint property of all. No several judgments between any of the parties to the action is authorized by this section, but only a joint one, under circumstances not permitted at common law. Counsel also refer the court to sections 241 and 242 as authority for giving a several judgment in this case between Elmore and the plaintiffs. But these are only formal declarations of the general power of a courtto give judgment for or against one or more of the parties plaintiff or fendant in a proper case, without in any way defining or declaring what constitutes such case. This must be looked for elsewhere. The demurrer to the counter-claim is"sustained. The plaintiff also the court for judgment on the pleadings for the sum of $1,976.78, with interest from January 6, 1886. The joint answer admits that this amount is due the plaintiffs, but denies the right to recover interest on the same. The right to interest, on the facts stated, is a question of law.. It. appears from the complaint that this Bum is a balance due on an account since January 6, 1886, and tlw mere denial in the answer of the right to interest, under these circumstances, does not affect the question. In my judgment, this is a case of matured account, with the balance ascertained, and therefore draws interest. Gen. Laws Or. 624. The interest on $1,976.78 for six months is $79.07. Judgment is given for the plaintiffs for $2,055.85, together with the costs and disbursements of the action.
WINCHESTER and another
AIKEN, Tenant in Possession.
(Circuit Oourt, 8. IJ.Georgia, E. IJ. 1887.)
EvIDENCE-FoUNDATION FOR SECONDARY.
In the courts of the United States an equitable defense cannot be heard to defeat the legal title in an action of ej,ectment, nor will a homestead exemption under the state laws, taken on land to which the plaintiff hall the legal title, defeat his action. ,Syllabu8 by the Oourt.)
On It motion to introduce secondary evidence of It deed, the amount of evidence to show the existence of the orilPnal will vary with the circumstances of each case. Where no direct issue IS made upon the fact, slight evidence will be sufficient. 1
Motion for New Trial by Defendant.
1 Respecting the adniissibility of secondary evidence, Bee v. Cannon, ante, 313, and note.
P. & P. Co.
Lester « Ranend, for the motion. Henry B. Tornpkim and Dtmmark« Adams, contra.
SPEER, J .. This was an action of ejectment to recover an island on the sea-coast, containing 4,000 acres, and known as "Heard's Island." On the twenty-sixth November, 1883, the cause was tried before the Honorable JAMESW. LoCKE, district judge, presiding by designation in this district,and a verdict was rendered for the plaintiff. The defendant thereupon made a motion for a new trial on two grounds: First, that the court erred in the admission of a copy deed. The only grounds uecessary to consider are as follows: It is insisted that the court erred in admitting a certified copy of the deed from the sheriff of McIntosh county without sufficient proof of the loss of the original. Section 3769 of the Code of Georgia provides: "The existence of a genuine original is essential to the admissibility of a copy. The amount of evidence to show such existence must vary with the circumstances of each case. Where no direct issue is made upon the fact, slight evidence would be sufficient." On the trial Henry B. Tompkins, of counsel for complainant, stated: "I wrote to Thomas E. Blackshearfor the deed to him made in February, 1877, by the sheriff of McIntosh county, conveying the lands in dispute. 1 have also inquired for it of the clerk of McIntosh county, and have not been able to find the original. My inquiries and search been diligent." !twas not disputed that the deed was in existence, and in tact the original was produced in· court on this hearing.. Finding that the copy introduced to the jury was a correct transcript of the original, I hold that, while. the evidence of search was not so diligent and thorough as it might have been, the <iefendant was not prejudiced. The second and more important ground is that on 75 acres of this land the defendant had taken out the homestead under section 2040 of the Code of Georgia, which provides, among other thiugs, "that 50 acres of land, and 5 additional acres for each of the applicant's children under thEl age of 16 years, shall be exempt from levy and sale by virtue of any process whatever under the laws of this state; nor shall any valid lien be created therein," ete. It appears that the defendant, Aiken, was formerly the owner of this entire tract; that on the eighth day ofDecember, 1866, he executed a mortgage thereon for $15,000 to the Townsend Saving Bank of the state of Connecticut. The mortgage was foreclosed by bill in this court on May 25, 1877, and under the judgment of foreclosure the United States malishal $old this land tothe plaintiffs on the sixth day of November, 1877, and4.eliveted to them his deed therefor. Previ9usly, to-wit, in January, 1877, the land was sold by the sheriff of McIntosh county to Thomas E. Blackshear, under a taxfi. fa. against the defendant, Aiken, for non-payment of taxes due to the state and county. On June 23, 1877, the defendant, Aiken, by virtue ofsectiol1 898 of the Code of Georgia, which authorizes the owner of land sold under a tax execution .to redeem. the same within one year, by paying the. purchaser the amount
paid thereon, with 10 per cent. interest from the date of the purchase, attempted to redeem 75 acres of the land, and Blackshear, the purchaser, executed to him the following receipt: "Received, Thomasville, June 23, 1877, from Isaac M.Aiken, eighty cents, in full for his state and county tax, with 10 per cent. interest on same to date, for an exemption of 75 acres on Heard's island. [Signed] "THOMAS E. BLACKSHEAR." The defendant then applied for and had set apart to him the homestead exemption above referred to. On the twenty-fifth day of December of the same year Blackshear also executed to the p.4tintiffs his deed conveying the entire tract to the plaintiffs in consideration of $43 for taxes he had paid for Aiken at the tax sale. It is insisted by the defendant that Blackshear held this land, under his tax purchase, simply as a trustee for Aiken; and that Aiken having the real equity in the title, his homestead should have prevented the sale under the mortgage fl. fa. of the Townsend Saving Bank; and for that reason the purchasers under the foreclosure sale, who are the plaintiffs here, took no title. It is true, possibly, that the defendant, in respect to these facts,has the right to complain of Blackshear's conduct, viz., that, when he paid the sum of 80 cents to Blackshear, the latter, if he regarded that amount as an adequate sum to redeem 75 acres, ought to have executed a reconveyance, conveying the title to Aiken. But it is also true that the receipt which Blackshear did execute does not, under the law of Georgia, pass the title. Now, the controversy here is upon the legal title. In the courts of the United Statesan equitable defense cannot be heard to defeat the legal title in an action of ejectnlent. The plaintiffs also purchased and took a deed from Blackshear of his title purchased at the tax sale. The fact that he may have been under obligation to permit Aiken to redeem 75 acres cannot defeat his subsequent deed to plaintiffs. His bad faith would give the defendant a right of action against him, but that is not involved here. Not having the title to the land covered by the homestead, the homestead must fail, as against the title of the plaintiffs, and the motion for a new trial is overruled.
«(Jinocult Oou'rt, 8. D. Ge()7'gia.
WIDOW'S ALLOWANCE-PARTIES TO APPLICATION.
In a proceeding to have set apart a year's support for the widow of an in· testate, the administrator of the estate is a necessary party.
Where a non-resident creditor of the estate resists the application, and re' moves the entire proceeding to the United States court, it will be remanded; where the administrator is a resident of the same state as the widow. (8gUalYu81J1I the Oou'rt.)
REMOVAL 011' CAUSES-CITIZENSHIP. ,