Jones v. &smith

• Decision Date: 30 June 1869
• Citation: 39 Ga. 64
• Court: Georgia Supreme Court
• Parties: JAMES H. JONES, plaintiff in error. v. LELLYETT &SMITH, defendants in error.

39 Ga. 64

JAMES H. JONES, plaintiff in error. v. LELLYETT &SMITH, defendants in error.

Supreme Court of the State of Georgia

(Atlanta, June Term, 1869.)

Bankruptcy. Lien of Judgments. Decided by Judge Farrott. Catoosa county. Chambers. April, 1869.

Lellyett & Smith, had their fi. fa. against Wooten & Gordon, levied on certain land as the property of Wooten, and Jones claimed the land. The parties agreed that Judge Parrott should hear the cause at Chambers, and there decide all questions of law and fact.

It was admitted that Wooten had owned the land since the rendition of the judgment; that Wooten had been regularlydischarged as a bankrupt, under the Bankrupt Act of Congress, of the 2nd of March, 1867; that said judgment was a valid lien on said land up to the time when Wooten became a bankrupt, and is so yet, unless the lien is destroyed by Wooten\'s said discharge; that Wooten sold said land to Jones, and Jones took possession of it several years before March, 1867; that this land was not mentioned in Wooten\'s schedule, in the Court of Bankruptcy, and his property paid *no dividend in said Court, and last, that plaintiff\'s judgment debt was not proved in the Court of Bankruptcy.

Jones' counsel moved to dismiss the levy upon the ground that the lien of the judgment was destroyed by Wooten's said discharge. The Judge overruled the motion, and ordered the fi. fa. to proceed. It is said the Judge erred in not sustaining said motion on said ground.

Hoge & Spraybery, for plaintiff in error, cited Bankrupt Act of March 2nd, 1867, sees. 32, 33, 1. 11, 14, 20, 21; Bankrupt Act of 1800, sec. 663; Bankrupt Act of 1841, sec. 2; Blake v. Bigham, 5 Ga. R., 437.

Dodson & Payne, for defendants, cited 1st P. Wms. 737; Gibbs v. Gibbs, 1st Dallas' R., 397; 6th Intr. R. Record, 199, 214, 222; Am. L. Review, April, 1869, 511, 512, 523; Act of 1841, sec, 4; Act of 1867, sec. 34.

WARNER, J.

This was a claim case tried in the Court below, upon an agreed statement of facts. The plaintiffs levied an execution upon a tract of land as the property of Wooten, one of the defendants therein, to satisfy their judgment lien against the same. The land was claimed by Jones, who had purchased the land from Wooten after the date of the judgment. The precise agreement of facts, as stated in the record, is as follows: "That Wooten, one of the defendants in fi. fa., and who owned the property in dispute since the rendition of this judgment, has been regularly discharged under the Bankrupt Act of March 2nd, 1867; that the judgment, in this case, was a valid lien on the property levied on up to the time Wooten became a bankrupt, and is so yet, unless it has been discharged by the bankruptcy of Wooten and his dis-charge under said act, that Wooten had sold the land levied on several years before the passage of the bankrupt law, and that Jones, the claimant had gone into possession of it, that this property was not included in his schedule, that this debt wasnot proved in bankruptcy, and that his estate paid *no dividend." By the statute laws of this State a judgment binds all the property of the defendant from its date, and, consequently, created a lien upon the land in dispute. It is insisted that, because Wooten has been discharged as a bankrupt, under the Act of Congress, Jones, the claimant, can plead Wooten\'s discharge in bar of the plaintiffs\' right to sell the land, in satisfaction of their judgment lien. The 20th section of the Bankrupt Act declares that, "when a creditor has a mortgage or pledge of real or personal property of the bankrupt, or a lien thereon for securing the payment of a debt owing to him by the bankrupt, he shall be admitted as a creditor only for the balance of the debt, after deducting the Value of such property, to be...