Lewis v. Moultrie Banking Co, (No. 17607.)
| Decision Date | 24 January 1927 |
| Docket Number | (No. 17607.) |
| Citation | 36 Ga.App. 347,136 S.E. 554 |
| Parties | LEWIS. v. MOULTRIE BANKING CO. |
| Court | Georgia Court of Appeals |
(Syllabus by the Court.)
The ground of the affidavit of illegality, setting up that the levy could not proceed on account of the existence of an outstanding preexisting security deed on the same property in favor of a third person, is without merit, since the defendant in fi. fa. could not be heard to raise such a question. See, also, Thompson v. Adams, 157 Ga. 42, 120 S. E. 529.
The ground of the affidavit, setting forth that the transfer of the fi. fa. to its present owner was not entered of record as provided for by section 1145 of the Civil Code 1910, is without merit, since such recording is not necessary to make it binding on the property of the taxpayer, nor is such recording necessary to preserve its priority except as to subsequent bona fide purchasers for value. Thompson v. Adams, 157 Ga. 42, 120 S. E. 529; National Bank of Athens v. Danforth, 80 Ga. 55(4), 7 S. E. 546; Fuller v. Dowell, 85 Ga. 463(2), 11 S. E. 773.
Under the ruling of the Supreme Court in Norman v. City of Moultrie, 157 Ga. 388, 121 S. E. 391, as followed by this court in Southland Investment Co. v. City of Moultrie, 34 Ga. App. 280, 129 S. E. 288, the description of the property in the fi. fa. was not void for uncertainty.
There was merit in the remaining ground of the affidavit of illegality, setting up that the levy under the fi. fa. was barred by the statute of limitations, and the action of the court in overruling this ground makes it necessary to set the judgment aside. The question raised by this ground is discussed in the opinion.
(Additional Syllabus by Editorial Staff.)
Error from Superior Court, Colquitt County; W. E. Thomas, Judge.
Levy under fi. fa. by the Marshal and the City of Moultrie on behalf of the Moultrie Banking Company, against R. E. Lewis, in which defendant interposed an affidavit of illegality. Affidavit was overruled, and defendant brings error. Reversed.
As shown by the agreed statement of facts, on March 21, 1914, the city of Moultrie made an assessment for paving and curbing the street abutting the property of R. E. Lewis, and on September 1, 1914, a fi. fa. was issued against the described property as belonging to Lewis. On March 31, 1919, this fi. fa. was levied by the marshal on the lot described. On April 4, 1919, Lewis borrowed money from the Moultrie Banking Company to take up the fi. fa., which was thereupon purported to be transferred to the bank by the city attorney. It was transferred to the bank by the marshal of the city on April 15, 1925, and on the same day was levied by the marshal on behalf of the bank and to tins levy Lewis interposed an affidavit of illegality. Upon the hearing of the affidavit of illegality before the judge, without the intervention of a jury, the affidavit was overruled and the fl. fa. ordered to proceed. Exception is taken to the judgment overruling the affidavit of illegality.
L. L. Moore, of Moultrie, for plaintiff in error.
P. Q. Bryan and Hoyt H. Welchel, both of Moultrie, for defendant in error.
JENKINS, P. J. (after stating the facts as above). [5] Under the general law, as well as the provision contained in the charter of the city of Moultrie, the fl. fa. issued by the city was in the nature of a tax fl. fa. governed by the same procedure, and must be taken to be subject to the same period of limitations. See Civil Code 1910, § 869. Section 1147 of the Civil Code provides that:
"All state, county, city or other tax fi. fas., before or after legal transfer and record, shall be enforced within seven years from the date of their issue; or within seven years from the time of the last entry upon the tax fia. fa. by the officer authorized to execute and return the same, if said entry is properly entered by said officer upon the execution docket and books in which said entries are now required to be made in cases of entries on executions issued on judgments."
Thus, while the fi. fa. on its face appears to be barred, the defendant in error contends that such is not the case, for two reasons: First, because, the proceeding in the instant case being one in rem, the statutes governing the dormancy of executions has no application; and, second, because it was shown that the execution had been kept in life by abona fide public effort to collect the same. These contentions will be discussed in the order of their statement.
It is true that the proceeding in this case is, on its face, a proceeding in rem, as was held by the Supreme Court in Norman v. City of Moultrie, 157 Ga. 38S (2), 121 S. E. 391, but it would not seem that for this reason alone the well-recognized principle, dealt with in numerous decisions of the Supreme Court, notably in the case of Fowler v. Bank of Americus, 114 Ga. 417, 40 S. E. 248, can be taken to have present application. In the case just cited it was held that a judgment in rem, founded on the foreclosure of a mortgage, does not come within the Dormant Judgment Act. The basis of this line of decisions is that in such a ease the judgment does not create the lien, but that it arises from the contract of the parties in executing the mortgage, and that the judgment of foreclosure, the execution issued thereon, and the levy, do not aid the lien, but only the enforcement of the same. As was said in the Fowler Case:
"The judgment of foreclosure is merely an order authorizing the sale of the specific property mentioned in the mortgage, in satisfaction of the lien therein created, and, consequently, does not, like an ordinary judgment from which a lien arises, become dormant under the statute declaring that ordinary judgments shall become dormant under certain conditions."
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