Southern Land & Cattle Co. v. Brock , 218 Ga. App. 297 ( 1995 )

Ruffin, Judge.

We granted the application of Southern Land & Cattle Company (“Southern”) for a discretionary appeal from the trial court’s order dismissing its garnishment against Marie Brock’s employer. Southern filed to garnish to satisfy its default judgment against Marie and Perry Brock, the defendants in fi. fa. It is the second such appearance of this case before us. See Southern Land &c. Co. v. Brock, 213 Ga. App. 3 (443 SE2d 647) (1994).

On July 16, 1984, the Brocks, as buyers, entered into an installment land sales contract with Southern, as seller, to purchase a parcel of land. The Brocks made some installment payments but defaulted on later payments, and Southern sued for the breach. In its complaint, Southern sought damages for the breach and, in addition, requested a special lien on the property under OCGA § 44-14-210. The Brocks failed to answer the complaint, and on June 13, 1986, the court awarded Southern a default judgment.

Southern subsequently repossessed the land and sold it to a third party. When that party defaulted on payments to Southern, it repossessed the land again and sold it to another party. It is undisputed that the total amount received by Southern from both sales was insufficient to satisfy the amount of the judgment against the Brocks.

On November 3, 1992, Southern filed a garnishment against Marie Brock’s employer to collect the remaining balance of the judgment. Brock traversed the garnishment, contending that under OCGA § 44-14-210 Southern had an election of remedies and that because it elected to repossess and subsequently sell the property, it could not also collect on the judgment. The trial court agreed with Brock and dismissed the garnishment. Because we do not find that OCGA § 44-14-210 precludes Southern from seeking other remedies to satisfy its judgment, we reverse.

OCGA § 44-14-210 (a) generally provides for the levy and sale of property where the defendant in fi. fa. has an interest in the property but does not hold legal title to it. See Hirsch v. Northwestern Mut. Life Ins. Co., 191 Ga. 524 (3) (13 SE2d 165) (1941). But contrary to the trial court’s order, Southern is not limited to satisfying its judgment under OCGA § 44-14-210. That section provides only one of several methods under which a party may attempt to satisfy its judgment resulting from a breach of the agreement where the buyers defaulted on installment payments under an installment land sales contract. See generally 7 Powell on Real Property, Par. 938.24 (rev. ed. 1995). The language of OCGA § 44-14-210 (a) is permissive and in pertinent part provides that if the holder of legal title, in this case Southern, seeks a levy and sale of the property, then “the proceeds shall be applied to the payment of the judgment. . . .” (Emphasis supplied.) The statutory language is clear that when such a party seeks this remedy, it is not selecting the exclusive method by which it can satisfy its judgment but is merely availing itself of a remedy that will provide payment toward the judgment balance. There is nothing in the statute that precludes a judgment creditor from seeking further relief if its judgment is not satisfied after application of the sale proceeds. See generally Oliver v. Slack, 192 Ga. 7 (14 SE2d 593) (1941).

Furthermore, Brock’s reliance on Couch v. Crane, 142 Ga. 22 (82 SE 459) (1914), is misplaced. The transaction in Couch is similar to the instant case. In the complaint, however, the seller sought to have the property sold to pay the balance of the purchase price and in addition prayed for judgment against the purchaser for the unpaid purchase money. The court found that those two remedies were inconsistent and could not be pursued in the same action. Id. at 27. It is clear that to have awarded both the remedies prayed for in Couch would result in a double recovery by the plaintiff; she would have recovered the full price of the property after the sale and would also be awarded a judgment for the unpaid purchase money. In this case, however, Southern is seeking only to satisfy the unpaid balance of the judgment, the amount to which both parties stipulated. Accordingly, the trial court erred in granting Brock’s traverse and in dismissing the garnishment.

Judgment reversed.

Pope, P. J., Birdsong, P. J., Andrews, Johnson and Smith, JJ., concur in the judgment only. Beasley, C. J., and McMurray, P. J., dissent. Blackburn, J., not participating.