Jackson v. Faver

• Decision Date: 15 September 1953
• Docket Number: Nos. 18285,18286,18287,s. 18285
• Citation: 77 S.E.2d 728,210 Ga. 58
• Parties: JACKSON et al. v. FAVER. SELMAN et al. v. FAVER. FAVER v. SELMAN et al.
• Court: Georgia Supreme Court

Page 728

77 S.E.2d 728

210 Ga. 58

JACKSON et al. v. FAVER.

SELMAN et al. v. FAVER.

FAVER v. SELMAN et al.

Nos. 18285, 18286, 18287.

Supreme Court of Georgia.

Sept. 15, 1953.

Rehearings Denied Sept. 28, 1953.

Syllabus by the Court.

1. 'A suit for a money judgment does not constitute a lis pendens, affecting the title to property conveyed by the defendant pending the action.' Wells v. Blitch, 184 Ga. 616, 192 S.E. 209; Tanner v. Wilson, 184 Ga. 628, 632, 192 S.E. 425.

2. Under the provisions of Code, § 39-701, as amended by Ga.L.1929, p. 165, it is provided that, as against the interest of third parties acting in good faith and without notice, who may have acquired a transfer or lien binding the defendant's property, a money judgment issued in Fulton County, Georgia, shall have a lien upon the property of the defendant only from the date of the entry of the execution issuing thereon upon the general execution docket, which that statute requires the clerk of the superior court to keep. (For the rule as to when the lien of such judgment rendered in counties other than those falling within the classification specified by the act of 1929, supra, shall attach, see Code, § 39-701, supra.)

3. Where one obtains a money judgment in a tort action in the superior court and fails to have an execution issued and recorded on the general execution docket in accordance with the requirements of the Code, § 39-701, as amended, relating to the keeping of the general execution docket and the entry of executions thereon, the lien of the judgment is lost as against property conveyed by the defendant in judgment to a purchaser in good faith and without notice during the pendency of the suit in which the judgment was rendered, and subsequently to the rendition of the judgment, but before the issuance and entry of an execution on the general execution docket as required by the statute. State Bank of Rome v. Moore, 148 Ga. 198(1), 96 S.E. 225.

4. Keeping in mind the distinction between knowledge and notice, as pointed out in Clarke v. Ingram, 107 Ga. 565, 33 S.E. 802, and the provisions of Code, § 37-116 that: 'Notice sufficient to excite attention and put a party on inquiry shall be notice of everything to which it is afterwards found such inquiry might have led. Ignorance of a fact, due to negligence, shall be equivalent to knowledge, in fixing the rights of parties,' and the rulings to the same effect made in Jordan v. Pollock, 14 Ga. 145(4); Urquhart v. Leverett, 69 Ga. 92; Greene v. Matthews, 31 Ga.App. 265, 120 S.E. 434, and also being mindful of the rule that knowledge acquired by an attorney in the course of his employment, and pertinent and relevant to the subject matter of his employment, is imputable to his client, Fowler v. Jackson, 86 Ga. 337, 12 S.E. 811; Deveney, Hood & Co. v. Burton, 110 Ga. 56, 35 S.E. 268; Citizens' Bank of Vidalia v. Citizens' & Southern Bank, 160 Ga. 109, 127 S.E. 219; Bean v. Barron, 176 Ga. 285, 168 S.E. 259, the fact that the attorneys for the purchaser, and therefore the purchaser, had actual knowledge of the pendency of a suit for a money judgment in a tort action would not charge them with notice of the rendition of a judgment in that case, where no execution had been issued and recorded as provided by the statute, and they would not be chargeable with negligence, and therefore with notice, because they did not examine the papers in the suit, examine the bar docket, examine the minutes of the court, or make inquiry of plaintiff's counsel in that case, for: 'What the law requires * * * to put innocent third parties upon notice of the existence of a judgment lien is an entry of the execution upon a certain record [the general execution docket] in the office of the clerk of the superior court. Where there is a failure to make such record, third parties are not charged with any duty to make on investigation or inquiry in relation to the existence of such a lien against their vendor.' (Emphasis supplied.) Harvey & Brown v. Sanders, 107 Ga. 740, 743, 33 S.E. 713. In Moody v. Millen, 103 Ga. 452, 457, 30 S.E. 258, it is said: 'It seems unquestionable that to require the purchaser to look to any other source of information than that which the statute has provided for him, would be contrary to the spirit and policy and letter of the statute.' See also Bailey v. Bailey, 93 Ga. 768, 21 S.E. 77; Eason v. Vandiver, 108 Ga. 109, 33 S.E. 873; Swift & Co. v. Dowling, 151 Ga. 449, 107 S.E. 49.

5. Where a vendee of land enters into actual possession and pays the entire purchase price, he thereby acquires a perfect equity which is the equivalent of legal title, and upon the strength thereof can successfully defend in ejectment against the vendor, or any one claiming under him, and may assert title under a claim to property attempted to be sold under judicial process although no formal deed conveying the legal title was ever executed. Grace v. Means, 129 Ga. 638, 641, 59 S.E. 811. See also Sikes v. Seckinger, 164 Ga. 96, 102, 137 S.E. 833; Strickland v. Jenkins, 198 Ga. 15, 31 S.E.2d 18; Long v. Godfrey, 198 Ga. 652, 32 S.E.2d 306; Toms v. Knighton, 199 Ga. 858, 862, 36 S.E.2d 315.

6. It appears in this case that J. D. Selman was the owner of a large tract of land known as Joylan Park at the time a suit for a money judgment in a tort action was filed against him and another by Mrs. Lydia B. Faver on November 1, 1949. In January, 1950, W. B. Jackson entered into a contract with Selman for the purchase of all of his lots in Joylan Park, and on January 23, 1950, Selman conveyed all of the lots covered by the contract with the exception of lots Nos. 116, 118, 119, 128, and 178. On April 10, 1950, judgment was entered against Selman in the suit brought against him by Mrs. Faver, but no execution was issued on the judgment and recorded on the general execution docket until three months later, on July 13, 1950. On April 17, 1950, after the rendition of the judgment, but prior to the date of the issuance of the execution and entry thereof on the general execution docket, Jackson's attorneys paid to Selman the purchase price of lots Nos. 116, 118, and 119, Jackson went into immediate actual possession thereof, and these three lots were conveyed by Selman to Jackson by deed dated May 2, 1950. On June 3, 1950, after rendition of the judgment, but prior to the issuance and entry of the execution on the general execution docket, Jackson himself paid to Selman the full purchase price of the two remaining lots, Nos. 128 and 178, and entered into actual possession thereof approximately one week later, but no deed was executed to him by Selman until some time in August, 1950, the exact date not being shown. Held:

(a) In his eighth finding of fact, the auditor found that Jackson paid Selman $18,000 for the Joylan Park property, and there is no contention that this was not its fair market value. In Pound v. Faulkner, 193 Ga. 413, 418, 18 S.E.2d 749, it is held that 'Proof of payment of the purchase money alone raises a presumption of good faith, and carries the burden of claimant.'

(b) The auditor having found that neither Jackson nor his attorneys had any actual knowledge of the existence of the judgment rendered against Selman at the time he acquired title to lots Nos. 116, 118, 119, 128, and 178, under the above rulings the auditor's conclusions of law that Jackson was charged with actual notice of the existence of the judgment against Selman, and was not, as to these lots, a bona fide purchaser without notice, were erroneous, and the trial judge erred in overruling the exceptions thereto, and in entering judgment against Jackson, as complained of by Jackson in case No. 18285.

(c) The ruling here made being controlling, it is unnecessary to pass on other assignments of error in Jackson's bill of exceptions.

7. After levy of Mrs. Faver's execution on a portion of the property above referred to, and the filing of a claim thereto by Jackson, which was later withdrawn by him as to some of the lots which are not here involved, Mrs. Faver filed her equitable petition in aid of her levy against Jackson, Selman, and Mrs. Selman (and others who need not be named here, since there is no question for decision as to the others), in which petition she sought to subject to her execution all of the Joylan Park property herein referred to, and attacked all of the conveyances thereof by Selman to Jackson, upon the ground that they were made by Selman with the intent and purpose to hinder, delay, and defraud her as a creditor, and that Jackson knew and had reasonable ground to suspect this intention on the part of Selman at the time he took such conveyances. Upon the trial of the consolidated claim and equitable proceedings, the auditor found that, at the time of the making of these conveyances by Selman, it was Selman's intention to hinder, delay, and defraud his creditors, but that Jackson did not know of or have reasonable grounds to suspect this intention on the part of Selman at the time he, Jackson, took the conveyances, and that the Joylan Park property, except that part to which the claim had been withdrawn, was not subject to the levy under this theory. To this latter finding of fact and conclusion of law by the auditor Mrs. Faver excepted in case No. 18287, and also excepted therein to the overruling of her motion for judgment on the auditor's report that the lien of her judgment with respect to all of the lots conveyed by Selman to Jackson was superior to the claim of Jackson, it being insisted by Mrs. Faver that actual knowledge on the part of Jackson of the pendency of her suit at the time of the conveyances charges Jackson with notice of or reasonable grounds to suspect Selman's fraudulent intention. Held:

(a) While a deed made with intention to hinder, delay, or defraud a creditor of the grantor is void as to the grantee if the grantee has notice of such intention or has reasonable ground to suspect the...