52 Ga. 389 | Ga. | 1874
1. We are inclined to the opinion that the charge of the judge, to the effect that if the judgment under which this land was sold, was even in part based on a debt contracted after the separation of Mr. Venable.and wife, the whole judgment would be without a lien, was not correct.. Indeed, just the opposite seems to us the proper rule, to-wit: that if any part
2. It is going very far to construe the divorce laws so as to tie up the property of the husband from sale by him, or from debts contracted by him after the separation. This is, however, as we held in Venable vs. Craig, 44 Georgia, 437, the provision of the Code. But the husband is, by the same section of the Code, authorized to sell, bona fide, in payment of pre-existing debts: Code, 1721. Our opinion is, that a ■bona fide creditor may also sue his debt to judgment, and if he gets a lien before the property is set apart to the wife by' .-the final judgment, the lien is good — she takes subject to it. This, as .it seems to us, is fair, and in harmony with the provisions of the Code. Debts existing at the time of the separation have a high equity, and if they be reduced to judgment before the rights of the wife are fixed by a judgment, tljey ought, we think, under the general rules of our law, giving preference to the oldest judgment, to be first paid. To say that the lien of the wife retroaets to the date of the separation, so as to take away a right then existing in creditors, to sue and get a lien, is unjust to the creditor, who contracted with no such view. We are, therefore, of opinion that were this a good judgment its superior date would give it preference to the judgment in favor of the wife.
3, 4. Had the defendant stood upon his fi. fa. alone, we think he would have been entitled to a verdict. Prima fade, in this state, an execution from a legal court is authority to sell, and it is not necessary to produce the judgment. But the defendant did not so stand. True, in undertaking to
Judgment affirmed.