the plaintiffs cou1<1 not have maintained an action on the order against the city unless the could'l;i.ave done so. But in this particular instance the city had accepted the order, and had specially with the plaintiffs to pay them the amount called for by the order, which was for the very materials they had put into the works for :was in was based on a good and sufficient consideration. 'Ris that agreement that the plainti.ffs seek to , is an luade directly:with the plaintiffs themselves. It is a valid and biuding agreement, and lean see no good reason why the, plaiptW'$(lannot enCore.n.t in this court. If the order had been drawn payable to a citizenof' this statel' and had been accepted by the city, then an assignee of accepted order could notmaintain ,a 8uit in this court to enforce its payment. But here the promise sought to be enforced was made direct to the plaintiffs, who are citizens of the state of Missouri. The construction I have given to the first: scction of the act ·to, it (seems i$the correct one, and must settle the right of the plaintiffs to recover. The other questions discussed relate mainly to the remedy and nature of proceedings against municipal cor· demuirerHs· overruled j and judgment is 1entered Tfor 'por.atiori.s. . plaintiffs for Judgment for $ ,· andaosts. /' , .:,
: 1 i' /, :1 L1)
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"1 ; t ; , ' ,'. ,', . .(CircuitOoUlli, N. D.Geargf)a. February 1; 1890.)
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'" ,Where legal, 111ll1,lifJ, .rElOQrd i.s in the husband" the Ittterest of the WIfe wlil notptevhlI a mortgage made by the husband, in 'ebe '; ': , absence of notice to the mortgageev"': ' ,",:: ' " .
dI1' Wtn'"'"Wlll'li:1S' 'EQOlI;1D:r.li:,E!lTATB.....BoNA:ll'ID:B
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an eXlilcution lias been against a tax collector and. tbe llu:l:EiUes on his boM, 'Sua an aftlaavit of illegliJity IDed by the tax collector under the stattitesof " Georgia,! ((Jl¥1e, S§ 025, 11666,) bas QIl.&I'Jj Mqepted by tbe levyil)g,Qflloer, a .ubsjlg\l,6nt . Bale of tl?-e propertf of the surety, before judgment On the illegality, ia invalid; and oonveys 'no tit'Ie; '" . . ' , "
2. TA.XATION..;.rr.llX..s.u.I1S. '
.,In Equity,: "Bill for .:,.: W. S. Pickerell, ;for complainapt." ' " iB. H. .
i, ,This is fn'rther: 'p,roceedings''Ilnder·an execution-issued :from, this udgment"against on the; forecllilsureof..amPlltgage, properly t II under/sections 19ViO,and1971 of the COdl;l of Georgia, llnq.,treated as The bill fa by the: wUeof S. Whel,. "Chel, the defendlliot in sbe the, land levied'on', andll1ssertiog is, nQtsubject:to the; execu.tion. ' Shebuaes thililclaim
· 'WHELCHEtV; LUCKY.
on 'two grounds: She says, fitst, thatwhUe deed to the land in' qnestion wasinade to her husband, and the title by the records, at the, time the deed to secure the loan was made to Lucky, was in her hus-. band, that her money, given her father, paid for the land, and thatthe deed should have been made to her, as she always supposed it had been until after decree in this case was taken. She says, therefore, that she had the equitable title to the land, and that Lucky's agent who negotiated the loan to her husband had express notice of her claim of title before the loan was made,and while it was under consideration. The evidence, uncontradicted, established the fact that money given Mrs. Whelchel by her father paid· for the land, a.nd it is not denied that she thought the legal title in her. The real question on that branch of the case is" did Lucky, by his agent, have notice, as contended, of Mrs. Whelchel's equitable title? The agent of Lucky, Gregory, assertspositively that he had no such notice. He says that he talked to Mrs. Whelchel about the land, aJidtold her that her husband was negotiating a loan on the place; that "she made no objection whatever to the loan, and made no claim to any interest in the land; she said nothing at all about having bought the place with her own money, and said nothing that would in any way put me on notice of any such thing." .Mrs. Whelchel, on the other hand. testifies that two men she supposes now to have been Mr. Gregory .and his companion, althoQgh she did not know them attbe time,<came to her house in the fall of 1885. She supposes they were the Bame men,because no other two men came there that would fit the description of Mt. Cox and Mr. Gregory. She supposed at the time that they were miners who came to look at the lands for mineral purposes. They aE'ked her some questions about the place, which she answered .asbestshe 'could. She told them' that she was expecting Borne miners. They did not tell her whether .they were miners or not. They asked her about the land, and whether there were any minet;als on it, "and, in the course of the conversation,said something about the title. 1 told- them that,my father had given me the money to buy place, and that it WilSall paid for, and was all right,-nota cent owing for They did. not tell me that they were out there to loan money to my husband, nor did either of them say a word to me, or in my presence, about a loan, or anything to that end, or say one word to disabuse my mind that they were Olining men,-that they came to look aboutthe placefor mining purposes; ,nor did they say aQything that gave me tbe slightest hint that they were fixing. to loan money to my husband on the place; nor did I know that he wanted to borrow any money, nor that he was p.mbarrasstd about mopey matters at all." The testimony of Alexander S. is that his wife had no kuowledge of his making a deed to Lucky, and did not consent to it, but, by all the at the time of the principal conve1'8atiolls evidence, he was between- Mrs. Whelcbelapp ¥r. Gregory; SQ ,tbat tbe issue is be.tween Mr. Gregory and Mrs, Whelchel, as to his having been putonn.Qtir-eas to the fact that .hermoney paid for the land. She does nqt, claim .any; warning, orst;ated an)·thing speciijcal\y
in: thew8Y of a. notice.. Gathering her intention from her testimony as given in this case, it would seem that all she was endeavoring to impress upon Mr. Gregory was that the title to the place was all right; that it was paid for, and unincumbered; and, in connection with that, that her father gave her the money to pay for the place. The testimony of Gregory is positive, certain, and specific. I do not think that it can be fairly said that this evidence establishes the fa.ct which it was incumbent on the plairttiffto show, namely, that the agent of the lender had notice of Mrs.. Whelchel's equitable interest in the land conveyed to Lucky as Sa. curity tor the loan. Bpsides this, it seemS unreasonable that a good loan agent,asGregory seems to have heen, would have loaned the money of his client to Whelchel, after he had notice from the wife that her money had paid for the land· as security. On this branch of the case, therefore, I think the plaintiff hils· failed to sustain the position takenin her bill. In addition to the ground for relief that has, just been discussed:, she claims· that she has the legal title to the land in controversy, by purchase at a sheriff's sale under an execution against her husband, in July, 1888. 'l'he execution under which the land was sold was issued against one Chamblee,an alleged defaulting tax collector of Hall county, and others, among them Alexander S.Whelchel, as sureties on his official bond. It is claimed by the deftmdant that the circumstanoessurrounding this sale shows such oollusion and fraud on the part of the complainant's attorneys, and OthfJ1'S connected with her, in briilging a1;lOut this sale,and in misleading defendant's agent as to the fact that the sale would take place, as to prevpotcomplainant claiming any title to be derived therefrom as against the. defendant here; and there is considerable force in this tention.But another question is raised which it seems should control tnematter. It appears in evidence that the tax collector, the principal defendant in the execution under which this land was had filed with the sheriff an affidavit of illegality under the statutes of Georgia, in which he claimed, that as to certain of the taxes in the execution, (there were four of-them,) there was no amount whatever due by him as tax ('ollector for the years fo!' which they were issued, and that as to certain others only the amount named in the illegality (being a lesa amount thsn that claimed' in the execution) was due, and that thesmoullt acknowledged to be due had been tendered to the officer authorized to receive it. These affidavits of illegality were received and acC ptedby the sheriff, and the question raised is as to whether or not the sheriff had authority to proceed any further with his execution until after the issue made by the illegalities had been properly determined in the court to which they were returnable. Section 525 of the Code of Georgia provides that "if such execution shall issue for too much, or if defendant denies on oath owing any part thereof,he may ,by filing an affidavit of illegality, according to the rules governing other illegalities, cause an issue to be formed thereon, which shall be tried' by a special jury, at the first· term of the supE:rior court thereafter." It will be seen that this refers to the "rules governing other illegalities." Section 3666 of the Code,' on the subject
IrI'KEE 17.· TRAVELERS' INS. CO.
of illegality to executions, provides that, "when the levy shall have been made, and affidavit and bond delivered to the officer as herein provided, it shall be the duty of such officer to suspend further proceedings on such execution, and return the execution, affidavit and bond to the next term of the court from which the execution issued, and it shall be the duty of said court to determine thereon at the first term thereof," etc. Now, after the sheriff had accepted the affidavits of illegality offered by the tax collector, did he have any power or authority to proceed further with the execution, and to sell the property of the surety advertised under the executions? To state this proposition seems to be to determine it. If, after the tax collector has made issue, as provided by the statutes, that no amount, or only such amount as he tenders on the execution, is due, the sheriff can proceed to sell the property of the surety, it would lead to great hardship, interminable confusion, and difficulty. The taX collector alone can tender this affidavit of illegality, and his sureties must certainly become subrogated to such rights as he acr.quires when the illegality is accepted by the sheriff. Besides, the express language of the statute is that the officer shall "suspend further proceedings on said execution, return it," etc. . It seems clear that, after the acceptance of the affidavit of illegality, the execution ceases to have vitality as an instrument to bring prvp3rty either of the principal or surety to sale. If it were otherwise, in the case of an execution wrongfully issued, and an affidavit of illegality filed by the tax collector, an i acceptel by the levying officer,and the illegality afterwards sustained by the of the court to the effect that no amount whatever was due by the tax 'collector, the sureties in the mean time, if having the available property, -could be made, by levy and sale, to pay ·the whole amount of the execUtion. The conclusion is irresistible that the act of the sheriff in selling this land after an acceptance of the illegality filed by the tax collector, and the deed made by him to Mrs. Whelchel in pursuance of that sale, were void, and that she acquired notiUe thereby. This disposes of the two grounds for relief made by the complainant, and a decree must .be -entered denying the injunction prayed for.
McKEE '11. TRAVELERS' INS.
Co. et ale
(Oircuit Oourt, N. D. Florida. December 81, 1889.)
A bill to enjoin the enforcement of a j udgment which became a lien on land a few days after the making of the contract under which complainant erected a bUilding, alien, and purchased the property on a suit to enforce the same. is demurrableJ where it does not specify the dates of 'commencing work under such coIitraot, ana of furnishing the labor and materials. !
In Equity. Bill for injunction. H. Bisbee, for complainant.