Barden v. Grady , 37 Ga. 660 ( 1868 )

Walkee,. J.

Barden held ajudgment against Kennon, who owned the tract of land in controversy, and not enough real estate besides this, to satisfy older judgment leins against him. Waterhouse purchased this land from’ Kennon, and sold it to complainant; subject to the lien of Barden’s judgment, ói¿ course. With the money receved from Waterhouse for this land, Kennon purchased the White’s Mill place. Subsequently he sold this, and, it is alleged, purchased a plantation in Clay county. Subsequently he sold all his remaining lands in the State, and removed to Alabama. Barden levied his execution on this plantation, sold by Kennon to'Waterhouse,. and the assignee of Waterhouse filed a bill, praying that Barden be enjoined from enforcing his judgment against this' property, and that he be required to proceed against the lands last sold by said Kennon, and that he be not permitted to sell this land of complainant, unless the lands subsequently sold, should be insufficient to satisfy his judgment. The Court granted the injunction, and to' this Barden excepts.

It will thus be seen that the simple question here is, whether the plaintiff, where the defendant.has no property of his own, can levy on any property sold by the defendant, which may be subject to the lien of his judgment at his option; or can he, at the instance of the persons who may have purchased portions of such property, be forced to proceed against any particular portion of the property so sold by defendant, and be restrained from proceeding against one portion, until another portion shall have been exhausted. This is the question. The plaintiff, Barden, and complainant, are the parties to this bill; the purchasers of the other lands from Kennon, are not. No question of contribution among.the purchasers to remove the incumbrance of the lien of Barden’s judgment from all their lands, is made by the bill. There is no proposition to pay Barden what is admitted to be due, and for which he has a judgment lien, binding the property of complainant, as well as others. The bill is not filed to bring into Court all those holding property, encumbered with this judgment lien, and adjust the equities among them, and let the plaintiff be paid from that portion of the property Avhich, according to the rules of equity, should be primarily liable. Nothing of the kind. The proposition is to restrain the plaintiff from proceeding to condemn this property, admitted to be subject, and force him to levy, on some other property, sold to one"else, Avhich is alleged to be subject also.

1. Can this be done? All judgments, in this State, are of equal dignity, and bind all the property of the "defendant, both real and personal, .from the date of such'judgment. Rev. Code, sec. 3222. When any person has bona fide, and for a valuable consideration, purchased real or personal property, and has been in the possession of such real property for four years, or of such personal property, two years, the same shall be discharged from the lien of any judgment against the person from whom he purchased. Rev. Code, sec. 3525. So that the lien of the plaintiff’s judgment is just as valid against the property in the hands of a bona fide purchaser, until protected by the statute of limitations, as in the hands of the defendant in execution.

2. By section 3593, Revised Code, the defendant in execution may point out, to be levied on, what part of his property,. in his possession, he may think proper; while the officer shall be .bound to take, and sell first, if the same is, in the opinion of the levying officer, sufficient to satisfy the judgment and costs. This provision was construed, by this Court, in Hammond vs. Myrick. 14 Ga. R. 77. In this case Myrick, the plaintiff in execution, caused it to be levied on property in the possession of Hammond, which he had purchased from defendant in execution, after the date of the judgment. Upon the trial of the claim case, Hammond offered to prove that the defendant had other property sufficient to satisfy the plaintiff’s judgment. This evidence was repelled ás illegal. The Court, page 78, says: “By statute, the lien of a judgment'attaches upon all the estate,of the defendant owned at its- date, or afterwards acquired; and he who buys part of it, buys it subject to that lien. * * * The act, (as to defendant’s being allowed to point out property to be levied on,) does not fetter the plaintiff; his judgment lien is not impaired; he may go on the property in the hands of the third person if he pleases. He is not likely so to please and incur the delay of a claim, if the defendant is in possession of property enough to pay him. He has pleased, or been compelled, in -this instance, to move upon the property-in Mr. Hammond’s hands. He had the legal right to do so. Ib, 79. In this case, the object was to show that the defendant, in fi. fa., had property in his possession sufficient to pay the judgment, and so relieve the property sold;. but the Court said the plaintiff had the legal right to move upon the property in the hands of a bona fide purchaser. How much stronger this case than the one' at bar,, when it is sought to restrain the plaintiff from proceeding against one piece of property, sold by defendant, and force him to proceed against another. If a plaintiff could not be required to proceed against property in the possession of defendant', much less could he be required to proceed against property in the hands of a bona fide purchaser from the defendant.'

In Knowles vs. Lawton, 18 Geo. R., 476, this Court decided that, “ The purchasers of parts of mortgaged property, have not the right to compel the mortgager to resort, for his money, first to the part of the property remaining in the hands of the mortgager.” .. In the opinion, p. 487, the Court says, “ A general judgment binds the property of the defendant to it, in Avhose hands soever, the propérty may be found, if it got into those hands, at any time, after the lien of the judgment had fastened itself upon it, notwithstanding that this person, into Avhose hands it may have so got, had never, in fact, heard of the judgment. When the mortgager sells parts of the mortgaged property at different times, to different persons, can these persons compel the mortgagee to go, for his money, first to the property remaining unsold, in the hands of the mortgager, and if that should prove insufficient, then to the parts of the sold property, in any particular order of procedure?” * * * The statute, then, gives, to the mortgagee, the right to sell, under his foreclosure, any part of the mortgaged property, at his own election. A Court cannot interfere with a right thus given; certainly not farther than to compel the mortgagee to take his money, if it should be tendered to him, and then to desist from any proceeding to sell the property. This being so, a Court of equity could not, at the instance of purchasers from. the morgager of the mortgaged property, compel • the mortgagee to resort, first to the property remaining in the hands of the mortgager; and -then, according to some order of priority, to that in the hands of those purchasers.” p. 489. The mortgagers are entitled to have payment of their debt before they can be required to abstain from selling, at their own election, any of the lands mortgaged, to them. The purchasers of the mortgaged property haAre only the right, against the mortgagees, to redeem their lands, on the payment of the mortgage debt; and such-a right does not give them a title to ask the mortgagees to bring the mortgaged property to sale, in any particular order. Ibid. This was a case in equity, so that the question has been decided, both in law and equity, that the plaintiff may proceed, at his option, to enforce, his judgment against any property subject to it, except that the defendant has a right to point.out what property, in his possession, he will have levied on, if it, in the opinion of the levying officer, be sufficient to satisfy the judgment and costs. See also, Behn & Foster vs. Young & Co., 21, Geo. R., 219; Semmes vs. Moses, Ib., 441; Green, Tracy & Co., vs. Ingram, 16 Geo, R., 170; Semmes vs. Boykin, 27 Geo. R., 53; Carter vs. Neal, 24 Geo. R., 353.

It was insisted that this Court, in Cummings vs. Cummings, 3 Kelly’s R., 460, had laid down a rule different from the one now enunciated. It might.be a sufficient reply'to say that the cases of Hammond vs. Myrick, in the 14th, and Knowles and Lawton, in the 18th, lay down a different rule, the rule as we now announce it, and being later, are to be followed rather than the rule in the Cummings case, if they be in conflict. But there is no conflict. In 21 Geo., R., 441, Lumpkin J., says, “ We do not design, in this opinion, to disturb, either the doctrine in Cummings and others, in 3 Kelly, or Lawton and others, in 18 Geo. R., those cases are consistent. with each other; and neither of them conflicts with this.” The question, in the Cummings case, was one of contribution. The contest, and the sole contest, was whether the property conveyed by Grace Rowell to Henry H. Cummings and to Joseph Ware, should contribute, rateably, to the payment of the mortgage debt; or the property first conveyed should not be subject to the payment of any part of the debt, until the property last conveyed should have been exhausted in such payment. There was no contest with the mortgagee. It was admitted that the mortgage had to be paid; all the parties in interest, were before the Court, and, as among the purchasers, the Court, adopting the rule laid down by Chancellor Kent, held that the mortgaged property last sold by the mortgager, after the property, in the hands of the mortgager, is exhausted, shall be first sold, and that the prior purchasers of portions of the mortgaged property, are not liable to contribute.. The opinion, in this case, exhausted the learning on the subject. It would be mere affectation to attempt to add to it. The conclusion of the Court, p. 479, is that there is “ no equality and no con-, tribution between several purchasers in succession, af different times.” We have no fault to find with this decision; but it is not our case.

It was also sought to bring this case within the principle of a creditor having a lien on two funds. New' Code, sec. 1939. It.may be sufficient to say, this is not a contest between creditors, and, therefore, the principle involved does not apply. If a question of contribution, among these several purchasers of property, subject to this lien, should arise, or a question be made among the .several creditors of Ken-non, as to what particular property shall be sold to pay Bar-den’s execution, then, possibly these principles may apply; we don’t know. They do not apply to the facts of the case now before us; which is a contest between a judgment creditor and a claimant, who purchased property' subject to the judgment. Under the facts, the Court should not have granted an injunction.

Judgment reversed.