Ware v. Jackson , 19 Ga. 452 ( 1856 )

The Court not being unanimous, delivered their opinions seriatim.

By the Court.

McDonald, J.

delivering the opinion.

'The plaintiff offered in evidence an execution against the (defendant, issued on a judgment obtained on the 10th day ■of March, 1846, which was levied on the tract of land, the ■subject of the claim, on the 22d day of June, 1848, which was read to the Jury. The plaintiff gave in evidence a deed also,, made by William B. Kimbrough to the defendant in execution, dated the 27th day of December, 1843, for the said land, and also a deed dated 7th day of March, 1848, made by Willis P. Baker to Alfred Iverson, as trustee of Mrs. Mary Anne Holt. The plaintiff in execution proved, further, that the land had been levied on as the property of Baker; that Alfred Iverson had claimed it; that he withdrew the ■claim, and that the Court thereupon passed an order that the •execution should proceed; that the land was worth twenty-five hundred dollars; that the defendant in execution went into possession of said tract of land, and remained in posses.•sion several years, and was succeeded in the possession by Dr. Likey Holt, the husband of Mrs. Mary Anne Holt.

Tbe claimant- then read in evidence, a bond given by defendant in execution to Alfred Iverson, trustee, for titles to said land, bearing date on the 1st day of January, 1845, the same deed by defendant to Iverson, read by plaintiff, and a deed made by Iverson to claimant for same land, dated 22d November, 1849. He then proved by Thadeus G. Holt, Jr. that under and for the said Iverson, as trustee, or for his father, Ur. Likey Ilolt, he went into possession of said lot of land early in the year 1845, and continued in such possession two years. He knew nothing of the payment of the purchase money to said Baker, or when it was paid, except that he, himself, handed him a part of it when he went into possession of said land, or while he was in possession of it.

The Court stated, in its charge to the Jury, many things that were conceded; and among them, that “Baker, on the 7th day of March, 1848, made a deed to Iverson to the lot of land, and Iverson then paid the purchase money.” The whole of the charge of the Court is excepted to, but it is unnecessary, for the purposes of this case, to refer to the whole of it. In one part of it the Court holds this language: “But now, Iverson’s equity is executed, and Baker has no title to the land; therefore, you cannot condemn the land under the execution, and you must find the issue for the claimant.”

In this State, a judgment is a lien on all the property of the defendant. (Cobb’s New Dig. 494, 496, 497.) It is a legal lien, and binds the legal title, as it is the highest evidence of property. The burden of proof, on the trial of claim cases, is on the plaintiff, when the defendant is not in possession of the property. The bare possession of the property by the defendant, is evidence of his ownership; and the claimant is bound, when that is shown, without any proof of title in him by plaintiff, to make good his title.

If the defendant is not in possession of the property, the plaintiff must then prove title in him. (Cobb’s New Dig. 533.) This he can do in no more effectual manner than by producing a deed conveying the legal title to him. In this case, the plaintiff went further, and proved possession of the land by the defendant, and a conveyance by him of the land to the first trustee. This conveyance was after the judgment lien had attached to the land.

,. The claimant relied on the last named deed as his evidence, to prove that the title had passed out of the defendant in execution to his predecessor in the trust; and he gave in evidence a bond executed by the,defendant in execution to Iverson, the first trustee, dated the first day of January, 1845, before the judgment, binding himself to make a title to the land on the payment of a note given by him to defendant, of six hundred dollars, of the same date of the bond, and payable 12 months after its date. It was conceded that' the money was paid at the time that Baker conveyed to Iverson (on 7th March, 1848). This, with the conveyance from Iverson to claimant, constituted his title. The claimant had no title to the land, at- the time the creditor’s judgment lien attached to the land, and it was then subject to seizure and sale by the Sheriff. Bid the subsequent payment of the money and the taking of a conveyance, defeat -the lien of the judgment ? What is a lien ? It is an obligation, title or claim annexed to or attaching upon any property, without satisfying which, such property cannot be demanded by its owner. (Tomlin’s Law Dic. Title “ Lien.”) If the lien attached upon the land, the owner, whether it were Baker or Iverson, could not have the property until the lien was satisfied. It was insisted in the argument, that Baker, having contracted away the. land and delivered possession of it, and given a bond to make a title when the purchase money was paid, placed Iverson in the condition of a mortgagor, and Baker in that of mortgagee ; and that the interest of a mortgagor in land, is not the subject of levy and sale; and therefore, the land could not be seized and sold s,s Baker’s land.

This argument changes the position of the parties in order to apply a principle to the «ase, that does not apply to it as the facts, exist. It supposes, in the face of facts to the contrary, that Baker, at the time of the sale, parted with the property and took a re-conveyance of it as security for the payment of the purchase money; when, in truth, he chose to-retain the property and the title, which was a much better security to him, treating it as a security, - than a mortgage could be. In the case of a mortgage, the mortgagee would have the right of redemption until that right became barred' by the Statute of Limitations; and the non-payment of the-purchase money, when due, did not affect the right of redemption. It is very different under a special contract for a title,, for in that case, the purchaser, on the breach of his contract to pay, lost his right to demand a title to the property, and could not enforce it in Equity, unless the vendor had waived' his right to take advantage of the purchaser’s breach of his contract. It is unnecessary to go into the consideration of what would be the effect of the transfer of Iverson’s note by Baker. Eor my own part, viewing the case as I do, it is not material to the. rights of the judgment creditor, whose legal lien attached upon the property, what difficulties Baker's conduct may have thrown in the way of Iverson, so long as the creditor had no connection with it. In this case, there was a good, subsisting legal title to the land in Baker, at the time of the judgment; the property was his; he had not parted with it, and did not. intend to part with it, until he ■ was paid; and so it' must have been understood by the purchaser ; the property was bound by the judgment, under the-Statute; and the subsequent execution of the contract, and the conveyance of the land, no more affects the right of the-judgment .creditor than if the entire contract of sale, payment and conveyance had been made by the parties after judgment, without the purchaser’s notice of the judgment.. The Court, therefore, erred in the charge given to the Jury, as hereinbefore set forth.

Iverson, it seems, made default in the payment of the note. It was due on the first of January, 1846, and was not paid until more than two years afterward; and in the meantime, the judgment was obtained. He had no equity, by reason of the default, and he lost all right to a specific performance of the contract, if Baker had insisted on it. (Bogart vs. Perry, (1 Johns. Ch. R. 55.)

No arrangement between Iverson and Baker, after judgment, could defeat creditor’s lien.

Judgment reversed.