Williams v. Williams Co. , 122 Ga. 178 ( 1905 )

Lamas, j.

(After stating the foregoing facts.) A judgment creditor may not only sell the defendant’s tangible property, but by garnishment he may acquire a control over his choses in action, and thereby in effect bring suit against his debtor’s debtor. Indeed, so extensive are the creditor’s rights that it may be said that the judgment creditor stands in the judgment debtor’s shoes. But this rule is not without exception. For there are cases in which a creditor may enforce claims where the debtor could not. ' And, conversely, the debtor may proceed where the creditor could not. Secret liens and fraudulent deeds may bind the one and be ineffective against the other. On the other hand the debtor may sue for torts, but the creditor can not make such 'a cause of action, available even by a process of garnishment. In some cases it would be greatly to the advantage of the creditor if the debtor would plead the statute of limitatiqns or the statute of frauds, or make particular defenses or assert certain rights. Yet in these-cases the creditor can neither compel the debtor to act nor act for him. The. creditor is not the guardian of the debtor, and can not interpose defenses for him nor avail himself at law of privileges which are personal to the debtor. Zellner v. Mobley, 84 Ga. 749; Wilson v. McMillan, 62 Ga. 19 ; Daniel v. Frost, 62 Ga. 706 (2); Rawlins v. Rawlins, 75 Ga. 636. In this class stands the case of disaffirming voidable sales- If* the sale had been absolutely void, of course no title would have passed, the lien of the mortgage would have continued, and the land would have been subject to the execution. Compare Hood v. Perry, 75 Ga. 310, with Zellner v. Mobley, 84 Ga. 749; Comer v. Allen, 72 Ga. 11 (2); Thompson v. Feagin, 60 Ga. 82 (2); Booker v. Worrill, 55 Ga. 332; Humphrey v. Copeland, 54 Ga. 543 (1); Chappell v. Boyd, 61 Ga. 667. But here the sale was only voidable. The mortgagee was an agent authorized to sell, even if not authorized to buy. Whitley v. James, 121 Ga. 521; Mutual Co. v. Haas, 100 Ga. 111. The mortgagor could ratify an irregularity in the execution of the power; or he could within a reasonable time disaffirm. But at the sale title, even if defeasible, passed, and as long as he remained silent, he was bound, and he being bound, so were his privies in estate. The mortgagor has an interest in not being held liable for the deficiency in the mortgage debt, or in lessening the amount of the deficiency. It may have been greatly to his interest to let the voidable sale stand. The property may have brought the full amount of the debt, or it may have sold for more than it would bring on a resale. By the levy of an execution issued on a judgment junior to the mortgage the creditor acquires no right to undo what has been done, and what the mortgagor may have good reason to object to having undone. Compare Martinez v. Lindsey, 91 Ala. 334; Palmer v. Young, 96 Ga. 246.

2. If the judgment creditor can not, under an ordinary levy of a common-law execution, object to a voidable sale divesting the title of the mortgagor, neither can he as creditor of the heir take advantage of irregularities in the sale of the property belonging to the estate, or of the fact that the administratrix bought at. own sale, and therefore acquired only a voidable title.

3-5. Neither can a judgment creditor uproot or set aside partition of the estate. Where the interests of creditors are not involved, the heirs may agree upon a division, or they may adopt and make valid a distribution under what would have been void as a judicial proceeding. The partition followed by acts adopting the- same clothed each heir with a perfect equity to the part assigned to him and at the same time divested his title in what had been assigned to the others. Under this distribution George Moody has no interest in the property levied on. That originally purchased by the administratrix as well as that assigned to Isaac was included in the mortgage, which was older than plaintiff’s judgment. The court properly directed a verdict fin'ding the property not subject. Adams v. Spivey, 94 Ga. 676; Amis v. Cameron, 55 Ga. 449.

Judgment affirmed.

All the Justices concur.