Harvey v. Sanders

• Decision Date: 31 May 1899
• Citation: 33 S.E. 713,107 Ga. 740
• Parties: HARVEY et al. v. SANDERS.
• Court: Georgia Supreme Court

33 S.E. 713

107 Ga. 740

HARVEY et al. v. SANDERS.

Supreme Court of Georgia

May 31, 1899

Syllabus by the Court.

1. The registry act of 1889 was intended not only for the protection of innocent creditors who might acquire liens or transfers of property of a defendant in fi. fa. to secure their debts, but also for the protection of bona fide purchasers for value who obtain title to such property by absolute deed. When therefore, there has been a failure to record a fi. fa within 10 days from the rendition of the judgment upon which it issued, as prescribed in section 2779 of the Civil Code and thereafter the defendant in fi. fa., before the registry of the execution, sells land to an innocent purchaser for value, who has no knowledge or notice of the existence of the judgment, the title to the land passes to such purchaser free from the lien of the judgment. This is true notwithstanding the purchaser made no investigation or inquiry as to the existence of such a lien before paying for and receiving his deed to the property.

2. The fact that the defendant in fi. fa. in such a case remained in possession of the land the balance of the year after such a sale, for the purpose of gathering his crop grown on the premises, and the further fact that the purchaser did not record his deed until after the record of the fi. fa. on the general execution docket of the superior court, cannot operate to render the property so purchased subject to the lien of the judgment.

3. The facts upon which this case was submitted to the judge below without the intervention of a jury demanded the judgment finding the property not subject.

Error from superior court, Upson county; E. J. Reagan, Judge.

Claim case between Harvey & Brown, for the use of Bates, Kingsberry & Co., and Candy Sanders. Judgment for claimant. The other parties bring error. Affirmed.

Lester & Lester and J. A. Cotten, for plaintiffs in error.

M. H. Sandwick, for defendant in error.

LEWIS J.

A fi. fa. issued from a justice's court of Upson county in favor of Harvey & Brown, for the use of Bates, Kingsberry & Co., against John M. W. Lyon, was levied upon a certain tract of land, as the property of the defendant, which was claimed by Candy Sanders. When the claim case came on for trial in Upson superior court, the issues of law and fact therein involved were submitted by the counsel for determination by the judge of that court without the intervention of a jury, upon substantially the following agreed statement of facts: Plaintiffs' judgment was obtained in the justice's court on January 6, 1894, and execution issued thereon January 18, 1894. This execution was not entered on the general execution docket until November 2, 1894, and was levied upon the land in dispute March 31, 1897. The claimant, Sanders, purchased this land from the defendant, Lyon, on August 8, 1894; paying full value for the land, and taking an absolute deed thereto from the defendant. At the time of the purchase the defendant was in possession of the land, and had a growing crop on the same, and it was agreed between him and the claimant that defendant should continue in possession of the land until he could gather his crops. Accordingly, defendant remained in possession until January 1, 1895, when claimant went into possession. At the time of the purchase by the claimant, he had no notice of the judgment against the vendor, the defendant in fi. fa. The sale was open and fair between the parties, and was known to a number of persons in the community. Plaintiff in fi. fa. knew nothing of the sale. Claimant's deed to the premises was recorded March 29, 1895. The justice who rendered the judgment against the defendant wrote the deed in his office in the presence of both the defendant and the claimant. No inquiry was made by claimant about the existence of any judgment against the defendant in fi. fa., nor did the claimant examine the general execution or judgment docket before he purchased the land from defendant. Upon this agreed statement of facts the judge rendered a decision finding the land not subject to the plaintiffs' execution, to which plaintiffs excepted, and assign the same as error in their bill of exceptions.

1. It is contended by counsel for plaintiffs in error that the registry act of 1889, as embodied in sections 2778 et seq. of the Civil Code, does not refer to transfers of property by deeds of absolute bargain and sale, but that it was simply intended to protect innocent creditors who might acquire liens or transfers of property belonging to defendants in fi fa. to secure their debts. We can see no possible reason for restricting the terms of the statute to such transfers only as may be made to creditors; nor can we see why the legislature should have contemplated giving such protection to a creditor, and at the same time denying it to a bona fide purchaser for value. If there is really any difference between a creditor who simply takes a deed from his debtor to secure a debt, and a purchaser who for value obtains an absolute deed conveying to him an indefeasible title to the property, the latter more effectually acquires a...