#### Coleman, sheriff, *et al.*vs. Slade & Etheridge.

1. When a case is tried on special issues of fact submitted by the court to the jury, it is his duty to submit such issues as will enable him to make a j udgment or decre e in the case from the verdict and pleadings and the undisputed facts; but he need not sift the jury or enter into particulars; nor need he submit issues requested by counsel, if he has already propounded questions which will draw the same substantial answers from the jury.

2. While there may be some conflicting evidence, yet there being sufficient evidence to sustain the finding of the jury, and the presiding judge having approved it, this court will not interfere.

3. That the decree does not follow the verdict, and has no evidence to support it, or is contrary to the weight of evidence, or is contrary to law, is neither of them cause for a new trial before the jury. They all go to motions or exceptions concerning the decree; none of them to error in the verdict or cause to sot it aside.

4. Where there is a contest over money arising from a sheriff’s sale of land, and the plaintiffs in *the.fi. fa.*under which the sale took place claim the fund, on the ground that they sold the land to the defendant, gave a bond for title, and upon recovering j udgment for the purchase money, made, filed and recorded a deed and caused a levy, thereon, under Code, §3654, these facts should be shown ; but they may be shown *aliunde,*and it is not necessary that they should be set out on the face of the judgment, pleadings or note sued on, *62or that a lien should be specified on tho face of the declaration or judgment.

(a.) This differs from cases of trusts and liens under other sections of the Code, in which it has been held that it was necessary to specify the lien, etc.

5. The third and fourth requests mixed law and facts so confusedly as to have misled the jury, and were properly refused. Tho fifth related to ordinary rules about the credit and force to be given to testimony, and those matters were sufficiently explained in the general charge. The other four did not apply to or elucidate the simple questions of fact to be settled by the jury, and there was no error in declining to grant the new trial because they were not given.

6. There was no error in the charge, “In the first place, were the executions of Slade & Etheridge for the purchase money of the property sold that brought this money into court ?” and if so, other specifications of error in the same ground cannot be considered; though, if considered at all, they would show only general complaint of the incompleteness of the charge, with a reiteration of the refusal of requests before complained of.

7. When a debtor sent cotton to his creditor, he could control its application by directing the debt he wished paid; but if lie did not do so, then the creditor could apply it where he wished among the debts of the debtor to him.

8. The eighteenth ground complains of the answer of the jury to a question submitted, and has been disposed of.

9. The nineteenth ground goes to the decree and not the verdict, and is no reason for a new trial of facts by the jury.

10. The twentieth and twenty-first grounds repeat the charge of error in the court in ruling that the judgments in favor of Slado & Etheridge against Tumliu are valid against contesting creditors, as also the executions issued thereon. The twentieth specifies no reason why they are not valid; and the twenty-first repeats the ground taken in the requests to charge about the specifications necessary in the declaration and judgment to secure tho lien for purchase money, already considered and determined. Tho twenty-second refers to error in the decree, which is no reason for trying facts before the jury again.

11. There was no error in the twenty-third and twenty-fourth grounds of tho motion which object to the entries of tho sheriff on the executions, and tho clerks’ entries on the deed, showing tho record of the deed, advertisement, etc., in accordance with and fulfilment of §3654 of the Code.

12. There was no error in excluding testimony as to tho value of the land from which tho fuud in court arose. Tho question was, whether tho judgment claiming payment was for purchase money *63If so, the land must pay it, if it brings enough, whether the value be great or little.

*(a.)*Grounds of a motion which complain that the court erred in admitting evidence about liens, because irrelevant and secondary, but do not show what those liens were, what was their extent, or whether the testimony hurt or not, will not cause a new trial.

13. Jurors cannot i mpeach their own verdict by depositions after their discharge, for the purpose of showing a misunderstanding of an answer to one of the questions submitted by the court.

14. The notes involved in this case were unconditional contracts in writing, and no issuable plea having been filed, the verdict of a jury would have been a mere formality, and a judgment by the court was not invalid.

15. Money rules, where creditors of a common debtor contest for their respective rights and priorities of lien, are in the nature of equitable proceedings, and should be determined accordingly; and no irregularities shouldfiefeat the real equities of the parties and justice of the case. In this case equitable results have been reached by the verdict and decree.

January 5, 1886

Practice in Superior Court. Equity. Verdict. Decree. Purchase Money. Liens. Charge of Court. Debtor and Creditor. Executions. Evidence. Jury and Jurors. Promissory Notes. Judgments. Money Rule. Before Judge Willis. Olay Superior Court. March Term, 1885.

To the report contained in the decision, it is necessary to add only that the following were, in substance, the grounds of the motion for a new trial:

(1), (2), (9), (10), (15). These grounds all rest on allegations that the issues submitted by the judge to the jury were vague, general arid indefinite, were not properly framed, and tended to confuse and mislead the jury ; also that the court refused to submit certain issues of fact offered by counsel for the contesting creditors. The issues which were refused required the jury to go more into details and particulars as to notes paid, payments made, etc., than the more comprehensive issues submitted by the judge. He refused them, on the ground that they were *64substantially covered by the issues submitted, without going into minor particulars.

(3), (4). Because the verdict does hot cover the material issues in the case, and is contrary to law.

(5), (6), (7). Because the decree does not follow the verdict, has no verdict to support it, and is contrary to law and evidence.

(8.) This ground complains of a refusal to give each of nine requests in charge. The only legal principles involved in these requests which are considered in the decision are as follows:

*(a.)*That where suit is brought on notes given for the purchase money of land, a special lien must be declared in the face of the declaration and judgment in order to' file a deed and sell the land under §3654 of the Code, and to have a lien on the proceeds superior to other liens; and that, in default of this, the plaintiffs in *Ji-fa.*would have only a general judgment against the defendant, and that parol testimony could not be introduced to show the nature of the claim, so as to fix a special lien on the fund as against contesting creditors.

*(b.)*That a judgment for $2,697.03, principal, and $46.15, interest, and $250 attorneys’ fees, besides costs, rendered in favor of Slade *&*Etheridge, was void, because rendered by the court. [The note was for a named amount of principal, which was stated to be due for part of the purchase money of certain lots of land. It then provided that “ if this note is not paid at maturity, I agree to pay all expenses of suit and lawyers’ fees incidental to its collection.” The declaration based on this note alleged that it was not paid at maturity, and- that the plaintiff had incurred attorneys’ fees thereon of ten per cent on the amount of the debt. The court rendered judgment by default for the principal, interest and attorneys’ fees.]

(c.) “ That if the jury find as true that Atkins *&*Tumlin paid, themselves or through others, to Pace the first three notes made to Pace, and agreed with Slade & Eth*65eridge and Pace, on or about December 15th, 1880, that Pace should make title to Slade & Etheridge of the lands in question, originally mentioned in Pace’s agreement to convey (or bond for titles), and that Slade *&*Etheridge should include debts of Atkins & Tumlin along with the amount then due Pace, $2,743.75, besides interest, and dividing the said total sum between Atkins & Tumlin, and adding to said one-half Tumlin’s individual debt to Slade & Etheridge, that Slale & Etheridge should make bond for titles to Tumlin aforesaid, and did make said bond in pursuance of said agreement (which bond is in evidence), then the one-half of said $2,743.75, besides interest, which Tumlin agreed to pay Slade *&*Etheridge, which they had to pay to Pace, was all that Tumlin was obligated for, as for purchase money of the land sold, and all of the other money added in the notes Tumlin gave to Slade and-Etheridge in January, 1881, was money loaned by Slade & Etheridge to Tumlin and secured by said title to land ; but in this contest for money, if said judgments of Slade & Etheridge are good as special judgments, they .can only prevail as against judgments against Tumlin, dated prior to December 15th, 1880, in force, to the extent of $1,371.87 and interest; that is to say, that said-sum of $1,371.87, besides interest, would be all that could be claimed by Slade & Etherdige, as superior to judgments aforesaid, at most; and if further reduced by a payment of $500, then said $500 deducted would diminish the amount so much.”

*(cl.)*[This request appears in the record so confusedly as to be almost unintelligible, but appears to be a repetition of the principles in *(a)*above.]

*(e.)*That the jury must weigh the evidence and be governed by the preponderance of it on all the issues before them, and can give to the testimony of each witness such credit as they may think he is fairly entitled to, and can take into consideration the bias and interest of each witness, if any can be discovered, and must find their verdict upon the testimony taken as a whole,

*66(16.) Because the court charged as follows: “In the first place, were the executions of Slade *&*Etheridge for the purchase money of the property sold that brought this money into court?”—The objection was that this was all there is, in substance, in the charge on this matter, and that this was a vague and uncertain presentation of this branch of the case and did not present to the jury all the law applicable to it.

(17.) Because the court charged as follows : “ If a party owes two debts to one man and sends him money or property, he has the right to direct to which one of them the debt shall be appropriated,”'etc'.—The objection was that this misled the jury.

(18.) Because the verdict did not find any amount of money from the fund in dispute as due to Slade *&*Etheridge on their execution. [An agreement of counsel appears in the record that the jury need not find any amounts of judgments, etc., but the court might calculate them.]

(19) , (22). Because the decree was wrong in the amount it found in favor of Slade & Etheridge.

(20) , (21). [These grounds complain that the court ruled substantially as set out in subdivision *(a)*under the eighth ground.]

(23.) Because the court admitted in evidence the entries of the sheriff on the Slade & Etheridge *fi. fas.*and the sheriff’s advertisement.—The objection was that these were irrelevant. [The entries and advertisement were in the usual form, except that at the close *of the*description of the property to be sold, the latter contained this clause:

*“*Levied on as the property of the defendant, William M. Tumlin, the amount of his interest therein being the fee simple title thereto conveyed by a deed made to him by the plaintiffs in this *fi. fa.,*and filed and recorded in the clerk’s office of the superior court of Early and Clay counties to enforce the collection of purchase money for the land herein described.”]

(24.) Because the court admitted the clerk’s entry on the deed of Slade & Etheridge to Wm. M. Tumlin. [This entry was as follows:

*67“State of Georgia, Early county. Filed in office, and recorded in deed book O, folio 170 and 171, this 28th day of November, 1883, at the instance of Slade & Etheridge, to enforce collection of purchase money under section 3654 of the Code of 1882. Judgment obtained in Randolph superior court.”

The deed was filed and recorded in Clay county also, and a similar entry made by the clerk there.]

(25) , (28), (29). These all turn on the rejection of testimony to show the value of the property out of which the fund in court arose, and what one of its owners would have taken for it.

(26) , (27). Because the court permitted witnesses, Tumlin and Slade, to be asked as to liens on crops given by Atkins & Tumlim to Slade & Etheridge, and their character,—the objection being that this was secondary, irrelevant and tending to confuse the jury.

(30.) Because when the verdict was returned, the finding was that the exceptions of Slade & Etheridge were for the purchase money for the land from which the fund in court arose. Immediately afterwards, some of the jury informed counsel for contesting creditors that it was not so agreed upon,—-that the finding should be that the executions were for part of the purchase money, and that they would have called attention to it when it was read, but that counsel who received it had his back to them and read it in a low tone, and they did not hear it distinctly. Counsel for the contesting creditors arose and called the attention of the court to’this statement, but it appeared that the jury had dispersed and some of them had left the courtroom.

The motion was overruled, and the movants excepted.

A. Hood & Son; W. C. Worrill; Wells & Lark; Henry MeAlpin ; Garrard *&*Meldrim, for plaintiffs in error.

Goetchius & Chappell ; W. D. Kiddoo, for defndants.

*68Jackson, Chief Justice.

Slade & Etheridge ruled the sheriff for money in his hands arising from the sale of Tumlin’s land, which they had conveyed to him under the statute of this state and deposited a deed in the clerk’s office, in order to recover the purchase money due them, he only having a bond for titles from them. Other judgment creditors were made parties to this rule, and they made the issue that the judgment of Slade *&*Etheridge was not for purchase money, and theirs being older, had the priority of claim upon the fund. These lands which raised this fund were a moiety of a large tract which had' belonged to Atkins & Tumlin, who owed one Pace for the purchase money of the same, and the main question of fact was whether Slade *&*Etheridge had paid their debt to Pace, and thereby relieved them, and by contract with them had held the title to the lands until they were paid back what they had paid Pace. By their contract, the large tract having been divided between Atkins *&*Tumlin, Slade & Etheridge had given a bond for titles to each for his respective half, and it is Tumlin’s half which was sold and brought in this fund for distribution.

The cause was tried on certain issues put by the court to the jury; their answers were favorable to Slade & Etheridge, and judgment was rendered accordingly. A motion for a new trial on numerous grounds was denied to the contesting creditors, and they bring the case, with a very-voluminous record, for review by this court.

1. When a case is tried on issues of this sort, submitted by the presiding judge, it is for him to submit such issues of fact as will enable him to make a judgment or decree from the verdict and the pleadings and the undisputed facts in the case. *It is*his duty to elicit from the answers of the jury all the facts necessary to this end. lie need not sift the jury or enter into particulars; nor need he submit issues requested by counsel, if he has already propounded questions which will draw the same *69substantial answers from the jury. Any other rule would lead to a useless multiplicity of points for the jury, to the distraction of their minds from the broad issues to numberless narrow and really unimportant questions, and make the verdict rather an uncertain result than a plain statement of the truth, and only that truth necessary to elucidate the pending case and fix the application of law to the facts, and thus to ascertain the legal rights of the litigants.

Guided by this very obvious rule of practice, we are unable to discover, on a close examination of the questions propounded, of the answers thereto, and of' the additional questions which the able counsel for the plaintiffs in error desired that the court should put to the jury, any error in the choice of issues submitted, in the denial of those asked for, or in the criticisms upon the obscurity or insufficiency of the answers.

The questions elicited and the answers made a case which, under the pleadings, enabled the court to render judgment upon the case made by law and facts. They were not so framed as to lead the jury to answer for one side or the other, or to show the slightest partiality.

In substance, the jury say that Atkins *&*Tumlin made a contract with Pace for the land at a certain price; that they paid but a small fraction of it; that Slade & Etheridge paid the balance, amounting to $4,536//» ; that a contract was made that Atkins *&*Tumlin allow Pace to make titles to Slade & Etheridge, with the understanding that Slade *&*Etheridge hold the titles as security for their debt and give Atkins & Tumlin bond for titles on payment of it; that Slade & Etheridge sold the land which brought the money into court to Tumlin, and Tumlin paid nothing on it; that the executions which sold the land were for this purchase money; that the sale was by bond for titles; that the deed to Tumlin was filed in the clerk’s office before levy; that Atkins *&*Tumlin bought as partners from Pace, and nothing on these executions has been *70paid. The additional fact that the land had been divided by themselves between Atkins and Tumlin was not a contested or disputed matter.

These facts, found by the jury, make a very clear and unambiguous redital of all that transpired necessary to show that these executions were for purchase money, and that Slade & Etheridge were entitled to the fund raised by the sale of the land.

2. Counsel for plaintiff in error, however, say that many of these answers are not supported by the evidence. There may be some conflict in respect to the payment of all which the jury found Slade & Etheridge paid, in the matter of applying cotton furnished by Atkins and Tumlin, but we think that the weight of evidence sustains the finding. If it does not preponderate for the verdict, but there is enough to support it, with the weight of the judge’s approval of it, we cannot legally overturn it. Really it becomes burdensome to reiterate a ruling so well settled by this court.

3. That the decree does not follow the verdict and has no evidence to support it, or is contrary to the weight of evidence, or is contrary to law, is neither of them cause for a new trial before the jury. Tliey all go to motions or exceptions concerning the decree; none of them to error in the verdict or cause to set it aside.

4. The requests to charge the jury were properly refused. In so far as they lay down the principle that it is necessary in suits upon notes given for land and judgments thereon, to specify or declare a lien thereon on the face of the declaration and judgment, in order to sell the same under execution by filing a deed for the land with the clerk under section 3654 of the Code, otherwise there is no superior lien for purchase money, they do not embody the correct law, or the practice thereunder, within our knowledge. If there be a contest for the money raised by the sale, then it must be shown that the judgment is for the purchase money, and that the deed was made, filed *71and recorded, and there had been a bond for titles, but the proof thereof may be made *aliunde*the face of the judgment or the pleadings on the note sued. Oases where this court has required the specification of the lien, etc., are cases of trusts or other liens under other sections of the Code, and not under section 3654 for purchase money in cases of bonds for title. 59 Ga., 104; 62 *Id.,*183: 65 *Id.,*417; 56 *Id.,*138; 68 *Id.,*269; 63 *Id.,*477.

5. The third and fourth requests, it strikes us, mixed law and facts so confusedly as to have misled the jury, and were properly refused. The fifth related to ordinary rules about the credit and force to be given to testimony, and those matters were sufficiently explained in the general charge. The other four did not apply to or elucidate the simple questions of fact to be settled by the jury, and there was no error in declining to grant the new trial because they were not given.

6. There certainly is no error in the charge that,£C In the first place, were the executions of Slade & Etheridge for the purchase money of the property sold that brought this money into court ?” And if so, other specifications of error in the same ground cannot be considered; though if considered at all, they would show only general complaint of the incompleteness of the charge, with a reiteration of the refusal of requests before complained of; and this disposes of the sixteenth ground of this motion.

7. The instruction a debtor, when he sent money or cotton to the creditor, could control its application by directing the debt he wished paid, but if he did not, then the creditor could apply it where he wished among the debts of the debtor to him, is familiar law, and we do not see how it did or could mislead the jury, which disposes of the seventeenth ground.

8. The eighteenth complains the answer of the jury, and has been disposed of.

9. The nineteenth goes to the decree, and not the verdict, and is no reason for a new trial of facts by the jury.

*7210. The 20th and 21st grounds repeat the charge of error in the court in ruling that the j udgments in favor of Slade & Etheridge against Tumlin are valid against contesting creditors, as also the executions issued thereon. The 20th specifies no reason why they are not valid, and the 21st repeats the ground taken in the requests to charge about the specifications necessary in the declaration and judgment to secure the lien for purchase money already considered and determined. The 22d refers to error in the decree, which, we repeat, is no reason for trying facts before the jury again.

11. The 23d and 24th grounds object to the entries of the sheriff and clerk upon the executions, showing the record of the deeds, advertisement, etc., in accordance with and fulfillment of section 3654 of the Code. We can see no error therein.

12. The value of the lands was not pertinent. The question was, is the judgment for purchase money? If so, the land must pay it, if it brings the money to do it, whether the value be great or little. So there is nothing in the 25th ground which complains of the exclusion of testimony as to its value. The 26th and 27th grounds complain that the court erred in admitting evidence about iiens because irrelevant and secondary, but what those iiens were, to what extent, and whether the testimony complained of hurt or not, nowhere appears in the ground. Surely no new trial ought to be granted on a ground which does not show hurt to the plaintiff in error, to some extent at least. The 28th ground is based upon the exclusion of evidence of value, or what Atkins would have sold the lands for under any circumstances, which has already been virtually decided, in a former part of this opinion, not to be relevant to the issues. The 29th ground is upon the same point, varied a little in the question put.

13. The 30th and last ground of the motion is in respect to a misunderstanding of two jurors touching the answer to *73one question, founded on depositions after their discharge. Jurors cannot impeach their own verdict.

14. Another point was perhaps made, at least it was argued before us by both sides, and therefore we consider it. It is that one of these judgments was invalid, because rendered by the court without a jury, not on an unconidi-. tional, but a conditiona1, contract. We think these notes are unconditional contracts in writing. Code, §5145. No issuable plea was hied, and the jury’s verdict would have been a mere formality.

15. In considering the whole case, we cannot conclude otherwise than that the judgment upholding the verdict is right. The facts found are supported by evidence. If so, Slade & Etheridge are entitled to the fund, and the judgment or decree awarding the money to them is right. It must be borne in mind that these issues on money rules against the sheriff, when creditors contest for their respective rights and priorities of lien, are in the nature of equitable proceedings, and should be determined accordingly ; and no irregularities should defeat the real equities of the parties and justice of the case. So looking at this case, as-developed by all the facts, it seems clear to us that equitable results are reached by the verdict and decree, and that, they should stand.

Judgment affirmed.