Collier v. Bank of Tupelo , 190 Ga. 598 ( 1940 )

In a claim to land by one holding under a defendant in fi. fa., in a partition proceeding where the plaintiff in fi. fa. had obtained a decree recognizing and setting up a special lien on the portion of the land awarded to the defendant in fi. fa., on account of advances previously made by the plaintiff in fi. fa. for the protection of the joint property by paying taxes and paving assessments, the lien thus recognized and set up was not subject to the dormancy judgment statutes, which have application only to liens created by judgment, and not to judgments or decrees made for the enforcement of pre-existing liens. Accordingly, the court erred in holding that the judgment of the plaintiff in fi. fa. had become dormant because of the failure to issue the execution within seven years from its rendition.

No. 13187. JUNE 12, 1940. REHEARING DENIED JULY 16, 1940. Previously to the present claim case arising from a levy on land of a fi. fa. in favor of Mrs. Marian Hulsey Collier against Fred W. Hulsey, and a claim to the land filed by Bank of Tupelo, grantee of Fred W. Hulsey, a content of this and other lands filed in 1925 an equitable suit for partition and other relief against the plaintiff and the defendant in fi. fa., and three other cotenants. In this suit was rendered the judgment on which the fi. fa. was issued. The petition alleged that the petitioner and the defendants had "paid various taxes and assessments against said property," and prayed, among other things, that the court "adjust all liens . . and partition [the property] in kind." The plaintiff in fi. fa., the defendant in fi. fa., and another cotenant filed an answer, setting up that "they have, from time to time, paid taxes, street-improvements liens, and now hold certain tax deeds to said property, as more fully shown by the record;" that "they do not, however, desire to insist upon the title acquired by them under said tax deed as against their cotenants, except in so far as may be necessary to collect from each of the contenants their pro rata share of said taxes;" and prayed that a master or auditor be appointed to determine the amounts due by each of the parties, and that their rights as set out in the original suit and their answer be fully protected. The court rendered a decree in 1927, vesting title in the cotenant parties respectively to numbered and described lots according to a plat attached to the decree. Among other provisions in favor of other cotenants, it was decreed that Mrs. Collier, the plaintiff in fi. fa., "have and recover of Fred W. Hulsey [the defendant in fi. fa.], for principal and interest to date for improvements paid out for his benefit, the sum of $300;" and that "the above-mentioned recoveries by [her and another cotenant], and any executions entered therefor be and the same are hereby made a special lien in favor of the parties recovering said sums against the partitioned interest of the parties against whom said recoveries are awarded."

An execution was issued in November, 1938, against the defendant in fi. fa., for $498.32 principal and $385.70 interest to the date of the execution. The execution recited that these amounts had been recovered "as a special lien" on the described land, and directed that the money be made therefrom. Levy was made accordingly. The Bank of Tupelo filed its claim in the statutory form. The claim was based on a deed, in evidence, executed to it by the defendant in fi. fa. in December, 1936, duly recorded. In the description of the property the numbered lots were referred to "as per plat of the Hulsey property made by Knox T. Thomas, Civil Engineer, in April, 1934, and filed among the papers in case No. 65655, Fulton superior court, same being a partition proceeding on said property."

The judge, trying the case without a jury, found in favor of the claimant on the only two questions involved: whether the validity of the execution and levy under the dormancy-judgment statutes could be attacked under a claim filed in the usual form; and whether the judgment and execution were invalid under the dormancy statutes, on account of the failure to issue the execution until more than seven years had elapsed since the rendition of the judgment. 1. "In the trial of a case in which property has been levied upon as that of the defendant in execution, and a third person has intervened as claimant, the claim affidavit, expressed in the usual form, is generally the only pleading necessary to admit whatever evidence the claimant may have to offer to uphold his or her own title, or to discharge that of the defendant as a competing title." Hadden v. Larned, 87 Ga. 634,637 (13 S.E. 806); Stonecypher v. Elliott, 181 Ga. 438 (2), 441 (182 S.E. 587); Harris v. Anderson, 149 Ga. 168 (99 S.E. 530). In this levy of an execution on land, the judgment for the claimant, which was based on the failure of the plaintiff in execution to issue the execution on her judgment against the defendant in an equitable partition until after the lapse of seven years, was not erroneous for the reason assigned, that the claim affidavit in the usual form failed to raise specifically such question of dormancy.

2. By the terms of the Code, § 37-1211, decrees in equity for the payment of money become dormant like other judgments and executions, when not enforced as provided by the Code, § 110-1001 et seq. Thus, in an equity case, where the decree is "for the payment of money," and not for the recovery of specific property or for the performance of some act or duty (Butler v. James,33 Ga. 148, 151; Wall v. Jones, 62 Ga. 725, 729; Hall v. Findley, 188 Ga. 487 (2), 4 S.E.2d 211), the dormancy statutes will apply, even though the decree for the collection of an unliquidated claim in the amount determined by the decree may be in rem to the extent that it creates and establishes a special lien against particular property where no such lien previously existed. The rule just stated is not in conflict with the principle recognized in cases where there is some pre-existing title, mortgage, or other lien, which the judgment or execution does not create, but merely seeks to declare and enforce. Such a judgment in rem, entered for the purpose of enforcing a pre-existing lien, is held not to become dormant under the dormancy statutes, which relate only to liens created by the judgment. Manifestly a lien which the judgment does not create the dormancy judgment statutes should not take away. Butt v.Maddox, 7 Ga. 495, 498; Horton v. Clark, 40 Ga. 412,416; Hays v. Reynolds, 53 Ga. 328, 330; Wall v. Jones, supra; Stiles v. Elliott, 68 Ga. 83 (2), 86; Cain v.Farmer, 74 Ga. 38, 41; Fowler v. Bank of Americus,114 Ga. 417, 418 (40 S.E. 248); Conway v. Caswell, 121 Ga. 254 (2), 258 (48 S.E. 956, 2 Ann. Cas. 269).

3. "If one tenant in common receives more than his share of the rents and profits, he shall be liable therefor as agent or bailee of the other cotenant; and in equity the claim for such indebtedness shall be superior to liens placed on his interest by the tenant in possession receiving the profits." Code, § 85-1004. Under the rule announced in New Winder Lumber Co. v. Guest,182 Ga. 859 (187 S.E. 63), the provisions of this section are applicable in favor of a tenant in common who has expended money for the protection of the joint property by the payment of taxes.

(a) "An equitable lien is not an estate or property in the thing itself, nor a right to recover the thing — that is, a right which may be the basis of a possessory action. . . It is simply a right of a special nature over the thing, which constitutes a charge or encumbrance upon the thing, so that the very thing itself may be proceeded against in an equitable action, and either sold or sequestered under a judicial decree, and its proceeds in the one case, or its profits in the other, applied upon the demand of the party in whose favor the lien exists. It is the very essence of this conception, that while the liencontinues, the possession of the thing remains with the debtor or person who holds the proprietary interest subject to theencumbrance." 1 Pomeroy's Eq. Jur. 202, § 165. Thus, by the great weight of authority, equitable liens of this character, particularly the right of a cotenant to enforce reimbursement for taxes expended to protect the property, are recognized as having an antecedent existence, at least as against the parties and their privies with notice, to the extent that such liens are not regarded as being created by the equitable proceedings brought for their enforcement. 14 Am. Jur. 109, 110, §§ 43, 44; 48 A.L.R. 591, and cit.; 62 C. J. 489, 490, § 132; 37 C. J. 341, § 65. If this were not true, the rule could not obtain, as announced inHines v. Munnerlyn, 57 Ga. 32 (2), before the adoption of the Code, § 85-1004, to the effect that such an equitable lien when thus set up is superior in dignity to liens acquired before the date of the decree. See also, as to the rule in bankruptcy cases that similar liens, enforced or set up by legal or equitable proceedings, are not created thereby, Middle GeorgiaLumber Co. v. Hunt, 53 Ga. App. 578 (3), 580 (186 S.E. 714), and cit.; 2 Remington on Bankruptcy (2d ed.), 979, 980, § 1150; 1224-1227, § 1372. Accordingly, even if the Code, § 85-1004, be taken as merely a codification of previous decisions, recognizing the right of one cotenant to set up and establish a previously existing equitable lien (Hines v. Munnerlyn, supra; Shiels v.Stark, 14 Ga. 429; Huff v. McDonald, 22 Ga. 131, 68 Am. D. 487), still the judgment would be unaffected by the dormancy statutes, since the lien must be regarded, at least as to a reimbursement for taxes and paving assessments, as a lien which pre-existed, and was not created by the equitable proceedings brought for its enforcement against the particular property.

(b) As to what the rule would be in a case where the cotenant's claim is for improvements made on the jointly owned property, where it might be necessary to adjudicate as to the propriety and value of such expenditures, it is unnecessary to determine, since that question is not before the court. SeeHelmken v. Meyer, 138 Ga. 457, 458 (75 S.E. 586, 45 L.R.A. (N.S.) 738); Turnbull v. Foster, 116 Ga. 765, 768 (43 S.E. 42); Walton v. Ward, 142 Ga. 385, 389 (82 S.E. 1067); Smith v. Smith, 133 Ga. 170 (65 S.E. 414).

4. The judgment in this case in favor of the plaintiff in fi. fa. in a partition proceeding, wherein it was decreed that she recover from her cotenant, the defendant in fi. fa., a specific sum, which was to constitute a special lien on the defendant's share of the property, amounted to but a recognition for the purpose of enforcement of the pre-existing lien in the plaintiff's favor for advances made for taxes including paving assessments, as set forth in her pleadings. Such judgment did not create a theretofore non-existent lien, such as would become subject to the dormancy judgment statutes.

(a) Where such a lien has been thus recognized, declared, and set up by a judgment for the purpose of enforcement before the bar of the lien itself by the statute of limitations, the fact that the period of limitations of the original lien, forming the basis of the decree, may have thereafter expired would not operate to render dormant the judgment setting it up. See, in this connection, Stiles v. Elliott, 68 Ga. 83, 86 (4);Redding v. Anderson, 144 Ga. 100 (3-b) (86 S.E. 241), where the contention that it would become thus barred was stated, doubted, but not decided. The rule in such a case, where the dormancy judgment statutes do not apply, but where the purpose of the judgment is but to recognize and set up for the sake of enforcement the previous existence of the lien, is that obtaining at common law. This was that the debt was prima facie presumed to be paid after the lapse of twenty years; and that no shorter period could be considered for such purpose unless there were other circumstances indicating payment, when and in such event a lesser period might be considered in connection with such other facts. Burt v. Casey, 10 Ga. 178,179; Milledge v. Gardner, 33 Ga. 397, 401;Willingham v. Long, 47 Ga. 540, 545, and cit.; Norton v.Aiken, 134 Ga. 21 (4), 24 (67 S.E. 425); Tumlin v.Guest, 31 Ga. App. 250 (2) (120 S.E. 442).

(b) No question as to an innocent purchaser arises in this case, since the deed of the claimant, as grantee of the defendant in fi. fa., was made after the partition decree on which the claimant's title is founded, and this deed refers to the partition proceeding in which the lien was set up by the decree. See Turnbull v. Foster, supra.

5. Under the preceding rulings, the judge erred in holding that the judgment of the plaintiff in fi. fa. had become dormant by reason of the fact that the execution had not been issued within seven years from the rendition of the judgment.

Judgment reversed. All the Justices concur.