Durham v. Mayo

By the Count.

Lyon, J.,

delivering the opinion.

David A. Mayo, as a mason, did some work on the “ Isabella Hotel,” or “ Crummey House,” as then called, in the city of Albany, and recorded his lien on the house and premises for the same, under the Act of 22d December, 1834. After his lien was recorded, this property was levied on and sold under an execution from the sixth Circuit Court of the United States, for the Southern District of Georgia, and was purchased at that sale by the plaintiff in error, Lindsey H. Durham. Mayo having brought suit on his claim, and obtained judgment under the Act, caused his execution, issued from that judgment, to be levied on the premises covered by his lien, and Durham interposed his claim.

These facts being developed on the trial, the claimant, Durham, asked the Court to charge the jury, “ that if claimant bought the property in dispute under a fi. fa. against Crummey, after the lien was recorded, then they should find the property not subject.” The Court refused to give the charge, but charged, “that if, at the time of the purchase of said property by the claimant, notice was given by the Marshal that the property was sold subject to the plaintiff’s lien, then the jury should find the property subject.”

The refusal to charge as directed, and the charge as given, are the grounds of error complained of in this case.

1. By the 6th section of thé Act before referred to, (Cobb, 556), it is enacted, that, “ Whenever any house and lot, or houses and lands, subject to incumbrances herein created, shall be seized and sold by authority of any process or decree of any court in this State, the same shall pass to the purchaser free from such incumbrance, which incumbrance shall attach to the proceeds in the hands of the officer making it, on a notice, as in eases of claims to money raised under execution, which notice,-with the money, shall be returned to the Court by the officer.” Under this Act, the sale of the premises, and purchase by Durham', under the execution against Crummey, divested the premises of the lien, and passed the whole title of Crummey, the defendant in the execution, to the purchaser, Durham; and the lien of Mayo, given by the statute, was transferred from the house and lot to the proceeds of that sale. The house and lot was no longer subject to be seized and sold under the lien, and the Court ought to have given the charge as requested.

2. That the property was sold by the Marshal subject to this lien, and purchased by Durham, with notice of its existence, does not, in the slightest degree, alter the rule. The statute contemplates that the holder of the lien shall take notice of the sale, for it provides that the incumbrance shall attach to the proceeds, instead of the premises, and that the officer, on notice, shall hold up the money, and return the same to the Court.

There is no hardship in this provision of the statute, but it is really beneficial for the holders of these liens. It saves the necessity of reducing their claims to judgment.

That it has proved disastrous to tjjie defendant, Mayo, in this case, is not the fault of the Act, but that of his neglect to give heed to it.

Judgment reversed.