Russel v. Slaton

1. When a bill was filed, to enjoin a writ of possession in an ejectment case, after the judgment therein had been affirmed by the Supreme Court, alleging that the Supreme Court had, in its judgment, mistaken or overlooked material facts in the record.* Held, that the bill was properly dismissed on demurrer. 2. The judgment of the Supreme Court in a case, is a judgment affirming or reversing the judgment below, and is final and conclusive' between the parties on the matters involved in that trial. The opinion of the Court, on the law of the case, does not stand on the same footing, and may be overruled, after argument, if shewn to be erroneous, even if unanimous.

Equity. Demurrer. Decided by Judge Collier. Fayette Superior Court, March Term, 1868. Russel filed a bill, making the following averments : On the 6th of October, 1835, John T. Davis bought land-lot No. 120, 7th District, Fayette county, at sheriff’s sale, as the property of James McCarcell, the drawer, before the grant for the same had issued from the State, and under said sale took immediate possession. The grant issued, and afterwards, on the 7th of February, 1837, it was again sold by the sheriff, •as the property of said drawer, and Davis bought it again, and paid the purchase money, but took no deed from the sheriff. Davis remained continuously in possession till the last of 1844 or first of 1845. About the 1st of October, 1838, said Davis and another owed Case & Stratton $1,500 00 and gave them their note for that sum. Upon the unpaid part of this note a judgment was obtained, on the 1st.of December, 1847, in favor of T. M. Jones, a nominal plaintiff. Russel bought said ft. fa., taking a transfer from Jones, and from Case, for his firm, and levied on said lot as the property of Davis, who was in possession. Slaton filed a claim to the land; it was tried, and the land was found subject to said fi. fa., and, under it, the land was regularly sold by the sheriff, and bid off by Russel, at $250 00. On the 12th of April, 1853, the sheriff made a deed to Russel, and put him in possession of the land. Under said sale Russel is, and ever has been, in possession of the same. On the 28th of August, 1855, Slaton brought ejectment against Russel for this lot, and recovered the same with mesne profits. He then recited all that took place in the aforesaid ejectment cause, almost in the words of the report of the same in 25th Georgia. Repart, 193, and that the judgment of the Supreme Court was made the judgment of the Superior Court, and thereupon, a writ of possession had issued to put him out, and Slaton in, possession of said land, and that the deed from Westbrook, sheriff, to May & Lambeth, was in fraud of the creditors of said Davis. ■ Because of these things; and because, as Russel averred, said Supreme Court, by accident or mistake, overlooked the fact that complainant proposed, and offered to prove in the Court below, that the debt by which the land was sold, when Russel became the purchaser, existed at the time, and for many years before, said Davis abandoned or left the possession of said land, and that the Judge of the Superior Court refused to allow Russel to make that proof, (that Court saying that the only question in the case was the statute of limitations, thereby misleading Russel’s attorneys,) and because said Court based its judgments, in part, on the fact that no such debts had been shown, overlooking said offer to show them, and because of the refusal of the Judge to allow the proof made, and because the Supreme Court also overlooked the fact that, on said trial, Russel proposed, by proof, to carry title down to Slaton, and that this evidence was rejected; to prevent another action of ejectment, and to quiet his possession, Russel prayed that said writ should be enjoined, and that Slaton bo decreed to be barred in the premises by the verdict in said claim case. The injunction was granted, answer was filed, and so matters stood till the term aforesaid. The answer denied any fraud or knowledge of any debts charged, stated how Slaton got a title, etc. The cause came up on a motion to dismiss the bill for want of equity, and, if it had any equity, upon the ground that the equity was sworn off. The Court dissolved the injunction and dismissed the bill, and this is assigned as error.