Collier v. Bank of Tupelo

• Decision Date: 12 June 1940
• Docket Number: 13187.
• Citation: 10 S.E.2d 62,190 Ga. 598
• Parties: COLLIER v. BANK OF TUPELO.
• Court: Georgia Supreme Court

10 S.E.2d 62

190 Ga. 598

COLLIER v. BANK OF TUPELO.

No. 13187.

Supreme Court of Georgia

June 12, 1940

Rehearing Denied July 17, 1940.

W L. Bryan and Samuel H. Wilds, both of Atlanta and Carlton Mobley, of Forsyth, for plaintiff in error.

Tye Thomson & Tye and R. A. Edmondson, Jr., all of Atlanta, for defendant in error.

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.

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 cotenant 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 cotenants 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.

Syllabus Opinion by the Court.

JENKINS Justice.

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 disparage 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 specifically raise 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 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, 161; 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 established 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...