Atkinson v. Beall , 33 Ga. 153 ( 1862 )

By the Court. —

Jenkins, J., delivering the opinion.’

It is manifest that the complainant has no legal estate in the premises, the subject of litigation. The conveyance was directly to herself, she being at the time a feme covert, and there is nothing in the deed indicating an intention to create a separate estate in her. Nor is there any evidence that at the time of this conveyance her husband assented to it. The consequence is, that upon the conveyance to her, the marital rights of the husband attached to the premises, and immediately, thereupon, the joint possession of the husband and wife supervened. But, in legal contemplation, the fact patent to the world was his possession. The equity relied upon by her to defeat the title of the defendant, Beall, derived under a sheriff’s sale, to satisfy a judgment against the husband, is a parol agreement between herself and husband, contemporaneous with the marriage, touching a chose in action, then and previously possessed by her, the fruit of which was the consideration paid for the land in dispute, and a notice given by her to Beall, before the sheriff’s sale, “ that she had a separate estate in the land.”

It may be conceded, for the argument, that the facts disclosed in the bill establish an equity in the wife available against the husband, or any one acquiring title directly from him, with full knowledge of those facts. But Beall did not purchase directly from him, nor' does it appear that he had full knowledge of the facts. Her statement to him that she had a separate estate in the land was but an assertion of a right, and it was positively weakened by the only fact which she brought to his knowledge, viz: the conveyance to herself, which she deemed sufficient. That, unqualified by the assent of the husband, or the antecedent circumstances, would have been unavailable even against him. How, then, could that conveyance, per se, affect Beall ?

But would Beall’s title have been affected by full notice of all the facts alleged in the bill ? In Shepherd vs. Burkhalter, 13 Ga., 443, and Smith vs. Jordan, 25 Ga., 687, it was held that the lien of a mortgage, not legally recorded, was invalid against a purchaser at sheriff’s sale under a judgment younger than the mortgage, even though the purchaser had’ prior notice of the mortgage. The principle upon which those cases rest is this: the junior judgment creditors, for whose benefit the sales were made, had a lien superior to that of the mortgages,' (by reason of the failure to record the mortgages,) but this advantage would avail them nought unless the purchasers under their judgments took title paramount to the mortgage liens. For the benefit, therefore, of the judgment creditors, purchasers at sheriff’s sales are subrogated to all the rights and advantages enjoyed by the former, notwithstanding personal notice to the latter. Now these were cases of conflicting legal liens, but we think the principle applies with equal, if not with greater force to a conflict between a legal lien and a mere outstanding equity. These adjudications are not only binding upon us in cases to which they apply, but they meet our entire approval. It results, then, that the complainant, in order to make her equity available against the purchaser at sheriff’s sale,-should have affected the judgment creditors, for whose benefit the sale was made, with notice of it. This is not attempted, and therefore the injunction which had been granted inlaid of her equity was properly dissolved upon motion.

I put out of view the allegations of error in the sheriff’s levy and advertisement, quoad the description of the property. If there be fatal error in these, it is available at law to any litigant against whom the defendant in error may set up title. It has no connection with the peculiar equity of the plaintiff in error, and cannot be invoked to strengthen it.

Let the judgment be affirmed.