35 S.E.2d 783 | Ga. Ct. App. | 1945
1. There was no merger of estates, under the facts of this case, as contemplated by the Code, § 85-710, since the holder of the judgment lien and the bill of sale did not possess a proprietary interest in either estate.
2. A defendant to an action may not assert defenses which, under the circumstances of this case, are available only to a stranger to the action.
Let us, then, consider the question of merger of estates. What are the prerequisites of such a merger? The Code, § 85-710, states: "If two estates in the same property shall unite in the same person in his individual capacity, the lesser estate shall be merged in the greater." What quantity of interest in each of the two estates in necessary before there will be such a merger as provided for by the Code? The Code is silent upon this point. We are of the opinion, however, in view of the rulings of the Supreme Court of this State and of the rulings in other jurisdictions, that, if there is to be a merger of two estates, the person in whom the two estates unite must have an absoluteproprietary interest in at least one of the two separate estates. An example of such a merger as we believe is intended by the statute would be where *121 one, owning in his own right and individual capacity a remainderman's interest in certain property, secures the outstanding life estate in the same property, thereby merging the life estate, the lesser, in the remainderman's estate, the greater. The court has been unable to find any case in the books where there has been a merger of estates in the absence of aproprietary interest in one of the estates in the same property uniting in the same person. Such circumstances are not presented in the instant case. Felder accepted the bill of sale as security for a second loan which he had made to Bostwick, and obtained thereby only a security interest in the property covered by the bill of sale, such security interest being, of course, subject to the prior judgment lien in the absence of any stipulation to the contrary. This security interest, instead of being in itself a proprietary interest in the property, is but incidental to the ownership of the debt secured, and so long as that debt retains its identity the security will also retain a distinct identity. 5 Property A.L.I., § 497g. If the courts have ever permitted the merger of estates in one holding only security interests in the property as the result of two different debts, we must confess that it has escaped the attention of this court.
2. Counsel for the plaintiff in error further requests a reversal of the judgment of the lower court upon the ground that Felder's acceptance of the bill of sale constituted a waiver of his judgment lien insofar as the property covered by the bill of sale is concerned. This position is untenable under the facts of this case. Felder's acceptance of the bill of sale can in no wise be said to have placed P. G. Bostwick in any more disadvantageous position than he occupied before, under the facts as they appear herein. The acceptance of the bill of sale took nothing from the judgment lien. This defense of waiver or estoppel, while as between Felder and Bill Bostwick might be available to Bill Bostwick — and upon this we are not called to express an opinion — is not legally available, under the circumstances of this case, to P. G. Bostwick. Bill Bostwick is not a party to this action, and P. G. Bostwick may not avail himself of those defenses which might be available to a stranger to the suit.
For the foregoing reasons the court did not err in overruling the grounds of the motion for a new trial.
Judgment affirmed. Sutton, P. J., and Parker, J., concur. *122