Routon v. Woodbury Banking Co.

• Decision Date: 14 April 1953
• Docket Number: No. 18160,18160
• Citation: 75 S.E.2d 561,209 Ga. 706
• Parties: ROUTON v. WOODBURY BANKING CO.
• Court: Georgia Supreme Court

Page 561

75 S.E.2d 561

209 Ga. 706

ROUTON v. WOODBURY BANKING CO.

No. 18160.

Supreme Court of Georgia.

April 14, 1953.

Syllabus by the Court.

The court did not err in directing a verdict for the plaintiff in execution.

An execution in favor of Woodbury Banking Company against H. L. McKenney, dated February 1, 1952, from the Superior Court of Meriwether County, was levied by the sheriff on described property as the property of the defendant in execution, on April 26, 1952. Mrs. H. R. Routon filed a claim to the property levied on.

Upon the trial of the claim in the superior court, the plaintiff in execution introduced in evidence a deed to secure debt from H. L. McKenney to the plaintiff in execution, dated April 25, 1927, duly recorded June 2, 1928; a note from H. L. McKenney to the plaintiff in execution, dated June 30, 1932; an execution from the Superior Court of Meriwether County in favor of the plaintiff in execution against H. L. McKenney; and a quitclaim deed for the purpose of levy and sale of the property described in the deed to secure debt.

The claimant introduced in evidence a deed to secure debt from H. L. McKenney to the claimant, dated August 6, 1937; a note from H. L. McKenney to the claimant in the sum of $5,000, dated the same date as the deed to secure debt; and a quitclaim deed from H. L. McKenney to the claimant dated June 21, 1950.

At the conclusion of the evidence, the court directed a verdict for the plaintiff in execution, and against the claimant. The claimant's motion for new trial, as amended, was overruled, and the exception is to that judgment.

G. A. Huddleston, Greenville, G. C. Thompson, Manchester, for plaintiff in error.

George C. Kennedy, Rayford D. Bulloch, Kennedy & Bulloch, Manchester, W. S. Allen, Greenville, for defendant in error.

HEAD, Justice.

The deed to secure debt from H. L. McKenney to Woodbury Banking Company (the plaintiff in execution) is prior in date and was duly recorded, and would constitute a prior title or lien over the deed to secure debt of the claimant, under the general rules of law. It is contended by the claimant, however, that the decision of this court in McKenney v. Woodbury Banking Co., 208 Ga. 616, 68 S.E.2d 571, to the effect that Woodbury Banking Company was not entitled to a 'special lien' upon the property described, was a ruling that the plaintiff in execution could not enforce its deed to secure debt. The sole objection by the claimant to the introduction of the deed to secure debt from McKenney to Woodbury Banking Company was the contention that this court had held that the bank was not entitled to a 'special lien' upon the property.

Legal assets are such as may be reached by the ordinary processes of the law. Equitable assets can be reached only through the intervention of equity. Code, § 37-401. A 'special lien' on specific property may be decreed whenever the rules of equity require this remedy. Chapple v. Hight, 161 Ga. 629, 632, 131 S.E. 505. A special or equitable lien is not an estate or property in the thing itself, nor a right to recover the thing. 'It is simply a right of a special nature over the thing, which constitutes a charge or encumbrance upon the thing, so that the very thing itself may be proceeded against in an equitable action'. Collier v. Bank of Tupelo, 190 Ga. 598, 601, 10 S.E.2d 62, 65; Federal Land Bank of Columbia v. Farmers & Merchants Bank, 177 Ga. 505, 512, 170 S.E. 504; 33 Am.Jur. 427, § 18; 53 C.J.S. Liens, § 20(a, b), pp. 869-872.

Prior to the Uniform Procedure Act, statutory liens could be enforced only in the manner provided by law. Coleman v. Freeman, 3 Ga. 137; Pease v. Scranton, 11 Ga. 33, 38; Osborn v. Ordinary of Harris County, 17 Ga. 123; Newton Manufacturing Co. v. White, 47 Ga. 400, 404.

Since the Uniform Procedure Act, Acts 1887, p. 64, equity may enforce liens created by express contracts under proper pleadings, and may protect equitable rights by impressing liens in the absence of a contract. Lowery Lock Co. v. Wright, 154 Ga. 867, 870, 115 S.E. 801; Smith v. Hancock, 163 Ga. 222, 136 S.E. 52; Smith v. Albright-England Co., 171 Ga. 544, 156 S.E. 313; Cook v. Securities Investment Co., 184 Ga. 544, 192 S.E. 179; Grant v. Hart, 192 Ga. 153, 14 S.E.2d 860; Pardue Medicine Co. v. Pardue, 194 Ga. 516, 22 S.E.2d 143; Parnell v. Wooten, 202 Ga. 443, 43 S.E.2d 673.

In McKenney v. Woodbury Banking Co., supra, the defendant (McKenney) attacked the validity of the bank's deed to secure debt, relying upon the act approved March 27, 1941, Ga.L.1941, p. 487, Code, Ann.Supp., § 67-1308, and the bank, by demurrer, attacked the defendant's answer and the constitutionality of the 1941 act. Under the well established rule that constitutional questions will not be decided unless a determination of such questions is essential to the judgment, Armstrong v. Jones, 34 Ga. 309(3); Taylor v. Flint, 35 Ga. 124(3); Board of Education of Glynn County v. Mayor etc., of City of Brunswick, 72 Ga. 353(1); Herring v. State, 114 Ga. 96(2), 39 S.E. 866; McGill v. Osborne, 131 Ga. 541(2), 62 S.E. 811; Hoover v. Pate, 162 Ga. 206(2), 132 S.E. 763; Wiley v....