Zimmerman v. Tucker , 64 Ga. 432 ( 1879 )

Bleckley, Justice.

1.. The claimants derive their title, and their only title, through the very deed of trust which was litigated and decreed upon in the equity cause. In that litigation they were, as we have held in 61 Ga., 599, represented by their trustee. The decree rendered against the trustee declared a lien upon the specific property in controversy for a certain sum of money, and it is the enforcement of that lien by a sale under the decree which is attempted by the creditor (the plaintiff in the decree), and which the claimants, the beneficiaries of the trust, resist by claim. The statutory remedy of claim (Code, §3725) is not given to any person who is a party to the execution under which the levy is made. It is clear, therefore, that the trustee, as such, could not arrest a sale under this decree by the interposition of a claim, and if he could not do it, we see not how those he represented when the decree was rendered can do it. They are as much bound by the decree as he is, if there was no fraud or collusion, and certainly fraud or collusion will not be presumed. The identical title which he failed upon is the one which they assert, and the decree was a direct ad judication upon the subordination of that title to the lien which the decree established and declared. In equity they were heard through their trustee, and the result of that hearing was that the property was adjudged subject to the creditor’s debt; they now seek, whilst the decree stands in full force, to prevent a sale of the property under the decree by interposing a claim founded on the trust title. The claim laws, as we construe them, make no provision for any such proceeding.

2. It was a part of the ruling in 61 Ga., 599, supra, that the decree is subject to be impeached for fraud or collusion, but it does not follow that a standing in court for this purpose can be obtained by interposing an ordinary statutory claim. Could a defendant in fi.fa. claim the property levied upon, in the statutory method, and from his position as claimant commence and carry on an attack against the judgment as fraudulent and void? Surely not. When the present claim was interposed, the decree stood open and unimpeached, and was, prima facie, as binding upon these claimants, so far as this property is concerned, as is an ordinary judgment upon the defendant. This being so, they could not and did not properly enter court by means of their claim, and having thus no valid claim case, they could not engraft upon it any equitable or other pleadings by which to test the liona fides-of the decree. Claim is a substitute for other due process of law only where the claim laws can be applied to inaugurate the proceeding. Once in court according to these laws, the claimant can raise issues, legal or equitable, to maintain his standing ; but if he comes by claim when he ought to come by process proper, he has no right to remain and build, however abundant may be his building materials.

Judgment affirmed.