Truluck and others vs. Peeples and others.

and distinctly denies all the facts and circumstances charged in the bill, upon which the complainants' equity is based. Therefore, let the judgment of the Court below stand affirmed.

No. 62.-JAMES H. TRULUCK, SUTTON H. TRULUCK, and Reuben HERNDON, and MORRIS SCOTT and ARTHUR HAIRE securities on appeal, plaintiffs in error, vs. JOHN PEEPLES, tenant in possession, and his co-defendants JAMES SIMMONS, JOEL L. SCARBOROUGH, JAMES M. SPURLOCK, Ex'or. and MALInda Hargrove, Ex'x. of ZACHARIAH B. HARGROVE, and LUTHER R. RAMSOUR, defendants in error.

[1.] Where a purchaser of land without notice of any fraud or defect in the title, purchases from one affected with notice, the former will be protected.

[2.] So where a purchaser with notice, purchases from one without notice, the purcha ser with notice will be protected, for otherwise, a bona fide purchaser might be deprived of the benefit of selling his property for its full value.

Ejectment. From Cass Superior Court. Tried before Judge WRIGHT. August Term, 1847.

For the facts of the case, and the errors assigned, see the opinion delivered by the Supreme Court,

J. W. H. UNDERWOOD, for plaintiffs.

MITCHELL, for defendants.

By the Court.-WARNER, J., delivering the opinion.

It appears from the record in this case, that James Mathews was the drawer of, lot of land number 106, in the 23d district of Cass county. The lessor of the plaintiff on the trial of the cause in the Court below, offered in evidence a grant from the State of Georgia of the premises in dispute, to James Mathews, also a deed from James Mathews to James H. Truluck and Sutton H. Truluck, dated the 29th January, 1833, which deed was not recorded

Truluck and others vs. Peeples and others.

until the 21st June, 1839. The lessor of the plaintiff then offered in evidence, a deed from the Trulucks to Reuben Herndon, for the premises, dated 23d May, 1839, which constituted the title under which the plaintiff claimed. The defendants then read in evidence a deed from James Mathews, the grantee, for the premises in dispute, to Joel L. Scarborough, dated the 28th of January, 1833. This deed was recorded in the proper county on the 24th day of September, 1833. Although the deed from Mathews to Scarborough is of older date than the deed from Mathews to the Trulucks, yet the evidence contained in the record shows, that the purchase of the lot of land by Scarborough from Mathews, was subsequent to the sale made by Mathews to the Trulucks, and consequently the deed from Mathews to Scarborough, must have been antedated, as it is quite clear from the evidence disclosed by the record, that Scarborough did not obtain his deed until some two or three days after the sale of the land by Mathews to James H. and Sutton H. Truluck. In addition to the deed from Mathews to Scarborough, the defendants read in evidence a deed from Scarborough to Zachariah B. Hargrove, dated 8th February, 1833, for the premises, and also a deed from Hargrove and others, to Thompson, dated 3d October, 1836, also a deed from Thompson to Ramsour, dated 7th February, 1837, and a deed from Ramsour to Simmons, dated 24th October, 1838.

On the trial of the cause, the Court below charged the jury, "That admitting Scarborough purchased the land from Mathews, the drawee, after the Trulucks had bought the land, and with a full knowledge of the deed to the Trulucks, yet if Scarborough's deed was recorded within twelve months after it was executed, and Scarborough sold to Hargrove, who had no knowledge of the deed to the Trulucks, and Hargrove sold to Thompson, and Thompson to Ramsour, and Ramsour to Simmons, none of the purchasers from Scarborough having notice of the deed to the Trulucks; and all the deeds having been made before Trulucks' deed was recorded, and the defendants in possession, as proved, they, the defendants, could not be affected by the notice to Scarborough, and the defendants were therefore entitled to recover, unless Hargrove and all those claiming under him had notice of the deed to the Trulucks at the time they purchased, as the deed to the Trulucks was not recorded within the time prescribed by law." To this charge of the Court below to the jury, the counsel for the plaintiffs excepted, and now assign the same for error in

Truluck and others vs. Peeples and others.

[1] this Court. Was the charge of the Court to the jury in accordance with the law of the case as presented by the record? We are of the opinion, that there was no error on the part of the Court below in the instructions given to the jury, and we entirely concur in the opinion of the Court as to the law arising upon the facts presented to us for our consideration.

Scarborough purchased from Mathews, the drawer of the land, with notice that the Trulucks had previously purchased the same land from the drawer; Scarborough's deed was recorded within the time required by law, after its execution. The deed from 'Mathews to the Trulucks was not recorded until June, 1839. Hargrove, under whom the defendants derived their title, purchased from Scarborough, in February, 1833, without notice, either actual or constructive, (so far as is shown by the record,) of the conveyance of the land, by Mathews to the Trulucks. It is a settled rule, that if one affected with notice, conveys to one without notice, the latter shall be protected equally as if no notice had ever existed. Jackson vs. Given et al., 8 Johns, R. 137. Varick vs. [2] Briggs et. al., 6 Paige Ch. R. 323. So where one withont notice conveys to one with notice, the purchaser with notice will be protected; for otherwise, a bona fide purchaser might be deprived of the benefit of selling his property for its full value. Ib. 329; Jackson vs. McChesney, 7 Cowen R. 360. Scarborough was a purchaser from Mathews, with notice of the prior conveyance to James H. and Sutton H. Truluck, but Hargrove, and those claiming under him, purchase from Scarborough without notice of the prior deed from Mathews to the Trulucks, and therefore are, under the rule, entitled to be protected.

Let the judgment of the Court below be affirmed.

CASES

ARGUED AND DETERMINED

IN THE

SUPREME COURT OF THE STATE OF GEORGIA,

AT MILLEDGEVILLE,

NOVEMBER TERM, 1847.

No. 63. JOHN THURMOND and others, plaintiffs in error, vs. CUTHBERT REESE, defendant in error.

[1.] The general rule is, that to entitle a creditor to come into equity to obtain satisfaction out of the equitable estate of his debtor, he should have first pursued his legal remedies to every available extent without being able to obtain satisfaction; yet he may file his bill at once, to set aside fraudulent conveyances made by the defendants in execution with the intent to delay, hinder, or defraud creditors; nor is it necessary that there should be a return of "no property to be found" upon the execution, where the aliunde proof was full, that all the effects of the defendants were exhausted, except those embraced in the conveyances alleged to be fraudulent,

In Equity. From Jasper Superior Court. Tried before Judge MERIWETHER. April Term, 1847.

It appears from the record, that several persons were indebted to Cuthbert Reese, the defendant in error, on divers small notes, on which suits were brought and judgments recovered in a justice's court. Pending the cases, the defendants executed mortgages on the whole of their property to John Thurmond, the plaintiff in error. The fi. fas. issuing from the magistrate's court in favour of Reese, were levied on the whole of the property, real and personal, belonging to the defendants, except five negroes, which were run off. The proceeds of the sale, amounting to some sixteen hundred dollars, were applied to older executions. Cuthbert Reese, the defendant in error, then filed his bill, alleging the foregoing facts

Thurmond and others vs. Reese.

and charging that the mortgages were without consideration and fraudulent, and made for the express purpose of defeating his debt. The bill stated that these mortgages were recorded, but no precise sum being set forth in them, purporting to be to secure the payment of two thousand dollars " more or less," purchasers were deterred from bidding, not being able to ascertain the extent of the lien. Notice was given of the mortgages on the day of sale. Besides this, Thurmond had obtained the control of two old executions against the defendants, and by the use of these and his mortgages, and by various covinous practices at the sale, he succeeded in buying in the property for sixteen hundred dollars, which was well worth $8,000 or $10,000; and, by seizing this fund with his old fi. fas., he had entirely defeated the complainant in the collection of his just claims. These are the material facts alleged in the bill.

The bill prayed that an account might be taken of the actual indebtedness of the mortgagors to Thurmond, that the land and negroes bought by him might be resold, and that, after discharging his demands, the residue might be appropriated to complainant's

debt.

The answer admitted that the property was sold as represented, but denied the fraud alleged, or that the sacrifice in the sale was attributable to the causes assigned in the bill.

A re-sale of the property was decreed by two successive special juries.

During the progress of the appeal trial, Reese tendered in evidence his justice's court executions. This testimony was objected to, on the ground that there was no entry by the proper officer, to wit, the constable, that there was no other property to be found. The Court below overruled this objection, and to this decision the plaintiffs in error excepted, and assigned the same for error.

F. H. CONE, for the plaintiffs in error,

R. V. HARDEMAN, for the defendant in error.

Mr. CONE, for the plaintiffs in error, made the following points: 1. That where a person has obtained a judgment in a justice's court, and execution has issued upon such judgment, such judgment creditor cannot come into a court of equity to have conveyances of lands and slaves set aside, until there is an entry upon