Lane v. Bradfield , 37 Ga. App. 395 ( 1927 )

Bell, J.,

dissenting. I can not concur in the conclusion reached in the first division, nor in the judgment of reversal. An undivided interest in a vested remainder in realty is subject to levy under a common-law execution, and since the code provides that an attachment against a debtor may be levied upon any property of the defendant, real or personal, to be found in the State, such remainder interest in realty is also subject to attachment. Civil Code (1910), §§ 5060, 5061, 5075, 5078. The real crux of the case under consideration is whether a vested remainder in realty is capable of such a seizure as to affect the remainder-man with notice. While the remainder in question was such that the defendant’s use and enjoyment of the property was postponed until the death of a life-tenant, who in the meantime held and was entitled to hold possession, and while the life-tenant may not be treated as the tenant or agent of the remainderman, still the presumption is that a person will so overlook his own property and will keep himself so informed with regard thereto as to become apprised of a seizure of the character appearing in this case, notwithstanding he is not in possession and his right of possession may not accrue until the happening of some future evént. McCrory v. Hall, 104 Ga. 666, 668 (30 S. E. 881), citing Smith v. Brown, 96 Ga. 274 (23 S. E. 849). Thus, such a seizure, even as to the defendant remainderman, will sufficiently meet the rule that “some overt act of constructive seizure by the levying officer is essential to the validity of the levy of an attachment upon real estate.” Groover v. Melton, 2 Ga. App. 269 (supra); Miller v. Swilley, 24 Ga. App. 278 (100 S. E. 641); United Prov. Corp. v. Board of Missions, 33 Ga. App. 9 (supra); 6 C. J. 204, and cit.

I do not dissent from the conclusions stated in the second and third divisions, but think that written notice to the defendant or other person could not affect the matter and that questions in reference to such notice are irrelevant. Guernsey v. Beeves, 58 Ga. 290 (1);. Tillman v. Fontaine, 98 Ga. 672 (27 S. E. 149); Tuells v. Torras, 113 Ga. 691 (4) (39 S. E. 455); Civil Code (1910), § 6026. I am of the opinion that the defendant’s remainder interest was subject to attachment and that the record shows a valid execution of the writ. I therefore think the judgment should be affirmed.