Dooly v. Isbell , 39 Ga. 342 ( 1869 )

McCay, J.

The argument of this case at the hearing, was mainly in the constitutionality and construction of Article VII of the Constitution of 1868, but if the verdict of the jury is right in the case, it ought to stand, even if the homestead provision of the Constitution does not apply, as between these parties. Whether it does apply or not, we do not decide.

The verdict of the jury is sustainable on the ground decided by this Court, at this term, in the case of Nathan Chapman vs. Warren Akin, from Bartow county. The plaintiff in the fi. fa. did not make his levy within the time prescribed by the Code, section 3525, after the property had gone into the possession of an innocent bona fide holder. The evidence shows that the property was bought by Isbell, on the 3d of March, 18.63, and the evidence does not show that he had any notice of this fi,. fa. The levy was made November 4th, 1868. The law, it is true, carries the lien of the judgment over upon the property of the defendant into the hands of an innocent bona fide holder, but it is upon the condition that he asserts it in four years after the transfer.

We held, in the case of Chapman vs. Akin, at this term, that this was not a statute of limitations, but a condition put by law, upon the plaintiff’s lien, like the duty to record a mortgage, or to enter a mechanic’s lien, and that if the plaintiff fail to comply with the condition, as against an innocent purchaser, the lien is gone. What is the difference in principle between this case and the case of a mortgage ? In case of a mortgage, the lien exists by the contract; it is not good against subsequent purchasers without notice, unless it is recorded ; and it is wholly immaterial why it is not -recorded ; neither death nor accident, nor war, nor minority, nor marriage excuses. There must he either record or. notice, to make the mortgage good against an innocent purchaser. So too of a judgment lien against an innocent purchaser without notice; it must be levied in four years; that is the condition on which it is permitted to follow property into the hands of third persons. And that condition must be performed. That the plaintiff in fi. fa. has been prevented by accident, by the act of God, as death, by minority, by war, by marriage, or by any hindrance, except one put in his way by the claimant himself, is no excuse. The claimant is himself, an innocent purchaser, and is entitled to protection if the plaintiff does not perform the conditions upon which the law permits him to pursue property in possession of defendant, at the date of the judgment, over into the hands of innocent purchasers.

Judgment affirmed.

Brown, C. J., concurred, but furnished no opinion.