Sloan v. Loftis , 157 Ga. 93 ( 1923 )

Per Curiam.

On June 1, 1919, O’Brien received a bond for title to a house and lot from Rhodes. On October 19, 1921, Loftis obtained a judgment against O’Brien, which was duly recorded on the general execution docket. On December 1, 1921, O’Brien transferred his bond for title to Mrs. Sloan; and on February 3, 1922, Rhodes conveyed the house and lot to her by warranty deed. On February 27, 1922, the execution was levied upon the house and lot, and Mrs. Sloan interposed her claim. The plaintiff in fi. fa. did not pay or offer to pay the claimant the amount of the purchase-money due by O’Brien to Rhodes under his bond for title, and paid to Rhodes by the claimant. Held, that the trial judge, to whom the case was submitted for decision without a jury, erred in finding the property subject. The judgment was a lien upon the equitable interest of O’Brien in the house and lot (O’Connor v. Georgia R. Bank, 121 Ga. 88, 48 S. E. 716); but it could not be reached by levy until the holder had complied with the provisions of the Civil Code (1910), §§ 6037, 6038. The claimant could take advantage of noncompliance with those provisions, and was entitled to prevail, in the absence of such compliance. Black v. Gate City Coffin Co., 115 Ga. 15 (41 S. E. 259).

Judgment reversed.

All the Justices concur, Russell, O. J., specially. H. A. Etheridge, for plaintiff in error. Hewitt W. Chambers, contra.