Donovan v. Simmons , 96 Ga. 340 ( 1895 )

Hart, Judge.

The facts ai’e sufficiently set forth in the official report. This case was tried before the Hon. Alex. O. King, judge pro hac vice in the court below, without the intervention of a jury, on an agreed statement of facts. In deciding the case the judge viewed it from two points of observation: first, as to the general rule of law determining the status of judgments; and secondly, as to how the facts affected the application of the rule in this particular case. From the legal standpoint he ruled favorably to the contention of the plaintiffs in fi. fa., and nothing else appearing, would have subjected the land to the execution; but viewing it from the second point of observation, he thought the facts prevented the application of the general rule, and held the land not subject to the execution. The question of law arises on the inquiry whether, by the act of 1889 (Acts of 1889, p. 106), a judgment against the maker of an unrecorded deed, and junior in date to such deed (the execution issuing from the judgment having been duly entered upon the general execution docket provided for by the act), becomes, by reason of the failure to record the deed, a lien upon the property thereby conveyed, the vendee not having gone into actual possession. This is the precise question made for our review by the plaintiffs in error, who were the plaintiffs in fi. fa. in the court below. For convenience of expression, a judgment, the execution issued from which has been duly entered as above stated, will hereinafter be designated as a “recorded judgment.”

The judge below held the property levied on not subject to the execution, but, in'his written opinion which was made a part of the l’ecord of the case here, he held, that in a contest between the deed and the judgment, the latter although younger would, because recorded, have become a lien on the land conveyed in the elder and unrecorded deed, but for the fact that the evidence in the case showed the vendees went into actual possession of the land before the rendition of the judgment which, in his opinion, served to dispense with the necessity of its record; in other words, the judge held that under the first section of the registry act of 1889, a recorded junior judgment against the vendor in an unrecorded deed became operative as a lien upon the property previously conveyed, unless the deed was saved from the necessity of record by actual possession of the vendee thereunder. Having found that claimants were in actual possession of the land, by reason of which fact the law charged notice, the judge concluded that the lien of the judgment was in consequence impotent,, because not acquired by persons designated in the act. as “third parties acting in good faith and without uotice.” He accordingly held the land not subject, and for the reason alone that the possession of the claimants at the time of the rendition of the judgment against the defendant in fi. fa. was fatal to the right of the judgment to subject the property. ¥e have been thus explicit in stating this question, and particular in reference to the written opinion of the judge in the court below, to enable us more fully to discuss the act of 1889, the construction of which we recognize as being of vast importance to the bar and to the public.

The plaintiffs in error bring this case here on four assignments of error, as follows: first, the court erred in finding in favor of claimants, T. J. and N. R. Simmons; second, in not finding against claimants, and dismissing the suit at their cost; third, in not finding for plaintiffs in fi. fa., ¥m. O. Donovan and S. O. Evans, on all the issues involved; fourth, in finding that the agreed statement of facts showed the plaintiffs in fi. fa. had any notice of the claimants’ title. The first, second and third assignments of error are simply three different ways of saying the same thing, and we will so treat them. This brings us to the construction of the act of 1889, entitled “an act to provide when transfers and liens shall take effect as against third parties.” This act, one branch of it, was before this court for construction in two eases reported together in 93d Ga. (page 768), namely the case of Bailey v. Bailey, and the case of Heard v. Hubbard, Justice Lumpkin delivering the opinion of the court. The question now before the court, namely, whether or not the lien of a judgment against the grantor in a deed? obtained subsequently to the deed but entered upon the general execution docket prior to the record of the deed, attaches to the property conveyed by the deed, was not involved in either of these two eases. In them, the precise point ruled (as assisting now in the further construction of the act) was, that though in each the claimants’ deed was not recorded before the rendition of the plaintiffs’ judgment, yet as they were recorded before the plaintiffs’ executions,respectively, were entered upon the general execution docket, the liens of the judgments did not attach to the property conveyed; and that this would be true even though the grantees in the deeds recorded them with notice of the subsequently acquired judgments against their grantors. This proposition would seem unquestionably correct. The vendee who purchases land of his vendor and takes his deed, but fails to recoi’d the deed until his vendor has been sued by some one and a judgment entered up, stands in a very different attitude from that of the vendee who buys land knowing of the existence of a judgment against his vendor, but seeks to protect himself because of a failure to record that judgment. The last vendee would not be a “third party acting in good faith and without notice,” and the judgment lien would attach to the land whether he did or did not record his deed. But why should the vendee who purchases land of the person who owns it at the time and has a right to sell it, but who subsequently has a judgment rendered against him, be defeated of his prior purchase? Is it sufficient to say, his laches in failing to record his deed is to be charged with such a penalty? Had he permitted his vendor to remain in possession of the land, thus making the possession and the ownership harmonious so far as the record disclosed, and third parties were induced to contract ioith the apparent owner on the assumption he was the true owner, then it might be right to visit upon the careless vendee the consequences of his negligence, rather than upon an innocent person. We do not think the act of 1889 creates any new competition between deeds of bargain and sale and the lien of judgments. The law as to deeds of this character is unchanged by it. The danger of a failure to record a deed is the exposure of it to defeat by a subsequent vendee without notice of the prioi; purchase. The only change made in the law by the act of 1889, so far as deeds are concerned, is to fix their time of going into effect and becoming operative relatively to the interests of certain persons. The first section of the act declares, “that deeds, mortgages and liens of all kinds, which are now required by law to be recorded in the office of the clerk of the superior court of each county within a specified time, shall, as against the interest of third parties acting in good faith and without notice, who may have acquired a transfer or lien binding the same property, take effect only from the time they are filed for record in the clerk’s office.”’ It is evident the word “lien,” as here used, has reference exclusively to liens acquired by contract. “Lien,” is a generic term, and includes both liens acquired by contract and by operation of law; but the context clearly indicates it is used here in its restricted sense as applicable only to contractual liens. To say a judgment must be acquired in good faith and without notice, to be a valid lien upon the debtor’s property, would be to engraft a new condition upon judgments. It matters not after judgment with what kind of faith a creditor was prompted to sue his debtor. It may be the creditor’s motive was to obtain judgment so that he might levy upon the home of his debtor and turn him and his family into the streets to gratify a fiendish desire to see them in beggary and want, yet this would furnish no valid legal reason to defeat the judgment; in other words, the motive which prompts a creditor to sue liis claim to judgment, is buried when a judgment is rendered in his favor. The motive dies when the judgment is born. Again, to hold that a judgment acquired shall be a lieu upon land conveyed in a prior unrecorded deed, would be to hold that a judgment shall be a lien upon other than the defendant’s property. The sale of land, although the deed may not have been recorded, as between the parties to the contract, and indeed as to all the world, is a parting of the right of title and ownership from the grantor to the grantee ; and to hold that an after acquired judgment against the grantor shall become a lien upon the property conveyed, would be to add to judgments a quality never possessed heretofore, and to take from a deed a condition heretofore always recognized. We cannot think that the legislature intended to do these things, and we do not think the language used requires any such construction. There are many hundreds of unrecorded deeds in Georgia today, upon which the purchase-money of lands has been paid, and the grantors therein have subsequently become insolvent; and we believe it would be violative of every sense of right and justice, as well as of the law, to hold that the creditors of these grantors can subsequently obtain judgments and levy upon the property previously conveyed, and subject these homes to the satisfaction of their judgments so obtained. We therefore think that the judge below erred in the conclusion reached, “that a recorded judgment against the grantor became by operation of the act of 1889 a lien upon property previously conveyed in an unrecorded deed.”

Secondly: The principles announced in the second and third head-notes need no enlargement. From the foregoing, while we are of the opinion that the judge below properly held the land not subject, we have thought it advisable, for the l’easons given, to comment at length upon his written opinion touching the legal aspect of the case; and while we think his reasoning was at fault, we agree with him in finding the property not subject, but we think it entirely immaterial ill this case whether the claimants were in actual possession or not. Judgment affirmed.