Culver v. Lambert

• Decision Date: 10 March 1909
• Citation: 64 S.E. 82,132 Ga. 296
• Parties: CULVER v. LAMBERT.
• Court: Georgia Supreme Court

64 S.E. 82

132 Ga. 296

CULVER v. LAMBERT.

Supreme Court of Georgia

March 10, 1909

Syllabus by the Court.

A borrower secured his note for the loan of money by deed to land, and upon default in payment at maturity the lender sued the note to judgment, upon which judgment an execution issued, and was levied on the land, without the lender having first reconveyed it to the borrower. At this sale the lender purchased the land, and a deed was made to him by the sheriff. Subsequently the lender, who had not previously conveyed the land to any one, after having made a deed to the defendant in execution, and after having had the same duly recorded, caused the execution again to be levied on the land, and the land sold thereunder by the sheriff. Held: (1) That the first sale was illegal and void (2) that the second sale was valid. The case of Napier v Saulsbury, 63 Ga. 477, distinguished.

[Ed Note.-For other cases, see Mortgages, Dec. Dig. § 499 ^[*]]

Where the lender went into possession under the first sale, he would be accountable to the borrower for the rents, issues, and profits intermediate of the two sales; but, if such rents and profits were insufficient to discharge the judgment, the resale of the property would not be invalid on this account, even as to the lender.

[Ed. Note.-For other cases, see Execution, Dec. Dig. § 285. ^[*]]

Error from Superior Court, Fulton County; J. T. Pendleton, Judge.

Action by Emma J. Culver against M. A. Lambert. Judgment for defendant, and plaintiff brings error. Affirmed.

R. O. Lovett, for plaintiff in error.

C. L. Pettigrew, for defendant in error.

EVANS P.J.

On February 5, 1895, Emma J. Culver borrowed $1,000 from the University of the South, and secured her note for the loan by a conveyance to the lender of a certain lot of land. Judgment was obtained on the note in May, 1898, and the execution issued thereon was levied on the land, and it was sold on August 2, 1898, and purchased by the lender, who was plaintiff in fi. fa., for $100. The plaintiff did not file any deed of reconveyance to the defendant in fi. fa. previous to the levy of the execution. Subsequently, on April 1, 1903, the University of the South conveyed the land to the defendant for the purpose of levy and sale, which deed was duly recorded, and thereafter caused its execution to be levied on the land, which was brought to sale after due advertisement, and the plaintiff in fi. fa. became the purchaser. On July 21, 1905, the University of the South sold and conveyed the land to M. A. Lambert. Afterwards the defendant in fi. fa., Emma Culver, instituted her action against M. A. Lambert to recover the land, and upon the foregoing facts appearing the court directed a verdict for the defendant, M. A. Lambert.

1. The controlling question in the case is whether the title of Emma J. Culver was divested under the last sale by the sheriff. It is admitted that the first sale was void. Where one borrows money from another, and makes him a deed to land to secure the debt, and the lender sues the borrower upon his failure to pay the debt at maturity, and obtains a judgment against him, before the execution is levied on the land given as security, the lender must reconvey the land to the borrower, and have the deed of reconveyance recorded; and a sale made under a levy without such deed of reconveyance is void, and will be set aside at the instance of the borrower. Benedict v. Gammon Theological Seminary, 122 Ga. 412, 50 S.E. 162. Napier v. Saulsbury,

63 Ga. 477. But where the lender, who is the plaintiff, is also the purchaser at an illegal and void sheriff's sale, we see no reason why he cannot treat the sale as void, and proceed in the manner which he should have first adopted in the enforcement of his execution. The defendant cannot complain that the plaintiff treats as void a sale which the law pronounces invalid, and proceeds to sell again. The illegal sale did not change the status. It neither invalidated the plaintiff's judgment nor divested the defendant's title. If the defendant had appealed to a court of equity to cancel the sheriff's deed to the plaintiff on the ground of the illegality of the sale, he could not equitably claim that the proceeds of the sale should be applied upon his debt. He could not have both the land and its proceeds. The second sale could hardly have had the effect of depressing the price of the land because of the prior illegal sale, since the rights of no new parties were injected into the transaction, and it was manifest that the...