Sloan v. Loftis
| Decision Date | 13 December 1923 |
| Docket Number | 3574. |
| Citation | 120 S.E. 781,157 Ga. 93 |
| Parties | SLOAN v. LOFTIS. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
On June 1, 1919, O'Brien received a bond for title to a house and lot from Rhodes. On October 19, 1921, Loftis obtained a judgment against O'Brien, which was duly recorded on the general execution docket. On December 1 1921, O'Brien transferred his bond for title to Mrs. Sloan, and on February 3, 1922, Rhodes conveyed the house and lot to her by warranty deed. On February 27, 1922, the execution was levied upon the house and lot, and Mrs. Sloan interposed her claim. The plaintiff in fi. fa. did not pay or offer to pay the claimant the amount of the purchase money due by O'Brien to Rhodes under his bond for title, and paid to Rhodes by the claimant. Held, that the trial judge, to whom the case was submitted for decision without a jury, erred in finding the property subject. The judgment was a lien upon the equitable interest of O'Brien in the house and lot. O'Connor v. Georgia R. Bank, 121 Ga. 88, 48 S.E 716; but it could not be reached by levy until the holder had complied with the provisions of the Civil Code 1910, §§ 6037, 6038. The claimant could take advantage of noncompliance with those provisions, and was entitled to prevail, in the absence of such compliance. Black v. Gate City Coffin Co., 115 Ga. 15, 41 S.E. 259.
Error from Superior Court, Fulton County; Geo. L. Bell, Judge.
Claim by L. W. Sloan against property in the possession of W. S Loftis, plaintiff in fi. fa. Judgment for plaintiff in fi fa., and claimant brings error. Reversed.
H. A Etheridge, of Atlanta, for plaintiff in error.
Hewitt W. Chambers, of Atlanta, for defendant in error.
Judgment reversed.
All the Justices concur; RUSSELL, C.J., specially.
RUSSELL C.J., specially concurring. Loftis, the defendant in error, caused a common-law fi. fa., which had been issued in his favor against T. J. O'Brien, to be levied upon a house and lot on Pope street in Atlanta, Ga., as the property of the defendant in fi. fa. Mrs. Lizzie W. Sloan, the plaintiff in error, interposed a statutory claim to the property. The finding of the court was against the claimant, and that the property was subject to the execution, and exception is taken to the judgment to that effect.
The question clearly and plainly presented by the bill of exceptions in this case is whether the equitable interest of the holder of a bond for title is a mere chose in action, which is not subject to the lien of a judgment against the holder of the bond for title, but which can be sold and transferred by its owner notwithstanding an outstanding judgment and free from the lien thereof. This court has several times adjudicated rights depending upon the interest of grantors in deeds given to secure debts, who thereafter executed mortgages upon the same property or gave additional security deeds; but we have been unable to find a case in this state in which the exact point now presented for adjudication has been determined. In the trial in the court below this cause was presented to the judge of the superior court, without a jury, under the following agreed statement of facts:
From this statement it appears that Loftis, the plaintiff in fi. fa., obtained his judgment against O'Brien, the defendant in fi. fa., and that the execution had been entered upon the general execution docket while O'Brien was still in possession of the premises as the owner of a bond for title from A. G. Rhodes, and some time before the claimant purchased the interest of O'Brien in the house and lot, taking from O'Brien an assignment of his right to obtain a title from Rhodes, the owner, by paying to him any balance due upon the original purchase price. The defendant in error maintains, and the learned trial judge in the court below held, that the interest of O'Brien, the defendant in fi. fa., as evidenced by bond for title, payment of part of the purchase money, and possession, was leviable and subject to the lien of the prior judgment which had been obtained by Loftis, and that Mrs. Sloan bought subject to the fi. fa. The plaintiff in error insists that the interest of O'Brien under the bond for title is a mere chose in action, like a promissory note, to which no lien attaches and which therefore is not subject to levy, but that this interest must be reached, if at all, just as a judgment debtor's interest in promissory notes, by some species of garnishment, either legal or equitable, accompanied by payment or tender of payment of the amount due to Rhodes, the original owner of the title, or to Mrs. Sloan, who derived legal title from Rhodes.
After careful consideration of the question we have reached the conclusion that the claim interposed by Mrs. Sloan was well founded and should have been sustained and the property found not subject to the fi. fa. Among other reasons which compel this conclusion (and which will be referred to in the course of this opinion) are two prominent facts which differentiate the case now before us from any of our previous rulings in cases involving apparently similar questions: First, the claim is a common-law claim of legal title as provided by the Code, with no reliance upon or assertion of facts constituting an equitable claim...
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