Chapman v. Akin , 39 Ga. 347 ( 1869 )

Brown, C. J.

1. We see no error in the ruling of the Court below, rejecting the testimony of Stone, as to the value of the three lots of land levied on in 1859. It is a well established rule in this Court that the levy of a fi. fa. upon lands unaccounted for is not p'imafaeie evidence of satisfaction, and does not extinguish the judgment: 6 Ga., 110; 14 Ga., 77; 20 Ga., 676.

2. Section 3525 of the Revised Code is in these words: “ 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.” The record in this case shows that Bronson purchased the land in dispute from Stone, the defendant, in fi. fas., in 1862, for a valuable consideration, and went into possession. It is not pretended that he had any actual notice of the judgments against Stone, or that he acted fraudulently, or in bad faith. He subsequently sold to Chapman, who, in like good faith, paid a valuable consideration for the land, and went into possession under his deed from Bronson. The possession was continuous from the purchase by Bronson till the levy ordered by Akin, in October, 1867, more than five years. The facts bring the case clearly within the statute, and a majority of this Court entertain no doubt that Chapman, after the expiration of the four years from the commencement of Bronson’s possession, held the land discharged from the lien of the judgments which Akin controlled against Stone.

3. It was urged by the learned counsel for the defendant in error that the lien of the judgment was not discharged because the plaintiff in fi. fas. was prohibited from levying his,/?, fas. during most of the period of the adverse possession, by the Acts of the Legislature, known as the Stay Laws, and more especially by the Act of March, 1866, which declares that “all statutes of limitation relating to liens affected by this Act shall be suspended,” etc. If the Acts, known as the Stay Laws, had been sustained by this Court as valid and binding upon the people of this State, the position assumed would have been tenable. But this Court has held said Acts to be unconstitutional and void, and that it was the right of plaintiffs in fi. fa. to proceed and make their money by levy and sale during the period when it was expressly forbidden by the Stay Laws. See Aycock el al., vs. Martin et al., 37 Ga., 124.

I do not wish to be understood as yielding my assent to the decision of the majority of this Court in the case above cited. But its correctness was not questioned by the counsel for the defendant in error. Indeed, I understand them to approve that decision as sound law. As the Court below made no ruling upon that point in this case, the question is not now before us for review, and I yield to the authority of the decision until it is legally questioned. Taking this decision as law, it is very clear that there was never a moment when Colonel Akin labored under the slightest legal disability to enforce the collection of the money due him upon his fi. fas. He is a lawyer of distinction, and has, I believe, from the beginning expressed the opinion that the Stay Laws were utterly null and void. It was his right to institute proceedings at any time to have them declared void by the Courts; and if he failed to do so, under his solemn convictions of their unconstitutionality, he can not now complain that he lost his rights by obedience to what he believed to be the laws of his State. Nor can the defendant in error in this case derive any aid from the provision in the Stay Law of 1866, above quoted, as it only suspended the Statutes of Limitations as to liens affected by that Act, and as the Act itself was, under the ruling of this Court, unconstitutional and void, it affected no lien, or any other right of the defendant in error. The Stay Law was either constitutional or it was not so. It was declared unconstitutional in the interest of creditors, and it is but just and fair that the authors and advocates of that decision should be bound by it, when it operates in favor of debtors, as well as when it serves the interest of creditors.

4. But it is insisted that section 3525 of the Code, above cited, is a statute of limitations, and that it was suspended during the war. In a certain loose, popular, sense it may be said to be a statute of limitations. But it is not so in any legal or technical sense. See Battle vs. Shivers, decided at this term. It is not classed under the head of limitations. It in no way affects the validity of plaintiff’s judgment, or his right to enforce it, by the sale of any property of the defendant. It simply discharges the lien as against this property, which Chapman has honestly purchased and paid for, and innocently holds.

It was seriously urged that the right of the plaintiff in Ji.fas. to enforce his judgment against all the property which may have belonged to the defendant, since the rendition of the judgments, is a right that cannot be divested by any default of the plaintiff short of the running of the Statute of Limitations against him. And it was claimed that his interest in the property of the defendant, by reason of his rights as a judgment creditor, amounts to an estate; and respectable authorities are cited to sustain this view of the case. Admit it, and the enquiry arises, what sort of an estate is it? Is it an absolute, unconditional estate in the property of the defendant ? I suppose no one will seriously insist that it is. If an estate at all, it is an estate with a condition annexed. And that condition requires, in case of a sale of land by the defendant to a bona fide purchaser for a valuable consideration, who is in possession of the land, that the plaintiff proceed by a levy within four years from the time when the possession commences, or the estate is divested, and the bona fide purchaser holds the land discharged from the lien of the judgment. In this view of the case, no legal disability whatever, except being non compos mentis, will relieve the plaintiff from failing to comply with the condition. See Revised Code, section 2271.

Another consideration should not be overlooked in this case. Chapman is an innocent purchaser for a valuable consideration, without any actual notice of Akin’s judgments. Innocent bona fide purchasers area favored class of litigants, both in Courts of Law and Courts of Equity. And neither the facts of this case, nor the practice of a large class of creditors during the war, calls upon the Courts to be astute in searching out reasons, or in finding rules, to enforce such liens as have remained inactive for a long time, at the expense of innocent purchasers for a valuable consideration, who have been in the quiet undisturbed possession of their lands for a number of years.

In closing this opinion,' I would respectfully suggest to the General Assembly, the propriety of a change of our law in reference to the lien of judgments. If the proper entry is made upon an execution once in every seven years, it is never dormant, but its vitality is perpetual. The Statute of Limitations never commences to run against the judgment till dormant; and it holds lien upon all property in the hands of the defendant and upon all that may have passed through his hands, for the period mentioned in section 3525 of the Code. If the judgment becomes dormant, it loses its . lien, and the Statute of Limitations then begins to run, and bars it in three years, if proper proceeding are not commenced within that time to revive it. A defendant may be sued in the Justices Courts, in the Superior Courts, and in the United States Courts, and he may be sued as an endorser, for instance, in any other county in the State, as well as the county of his residence. A citizen of another State, or even a citizen of our own State, who is negotiating for the purchase of lands in Georgia, seldom knows whether he is getting a good title or not. Before he can be positive, unless he knows all about the vendors business, he must have searched the records of every county in the State. This is a practical impossibility. In my opinion, the law should require the plaintiff in ft. fa. to have his execution with the entries thereon at the time, recorded in each county, other than the county in which the judgment is rendered, where the defendant’s property may be, before it takes lien upon the property there. This would be no great hardship on judgment creditors who do not wish to get satisfaction by entrapping or defranding the innocent, and it would afford purchasers an opportunity to protect themselves.

Let the judgment be reversed.