71 Ga. 218 | Ga. | 1883
This was a claim case, in which the claimant relied on the proposition that he had bona fide, and for a valuable consideration, purchased the land levied on, and had been in the possession of it for four years, and that it was discharged from the lien of the judgment, under the provisions of section 3583 of the Code.
The facts presented by the record are, in substance, as follows:
On November 9, 1868, Colbert, as administrator oí Harris, obtained a judgment against O. C. Whittington, principal, and James N. Mathews, security, upon which execution was issued September 27, 1871. On July 31, 1873, Preston, the sheriff, levied the ft. fa. on the lot of land described in his entry. To this levy the defendant, Whittington, interposed an illegality, and further proceedings thereunder were suspended until the illegality was finally disposed of, sometime subsequent to April 14,1874, when a judgment was rendered therein by this court.
Oh October 1, 1875, Danielly, the then sheriff, for some reason not apparent, the levy of July 31,1873, standing undisposed of and decided by the superior court to be legal, relieved thefi.fa. on the same property, and gave notice thereof to Hancock, who held possession under John W. Whittington. Thereupon, a claim to the east half of the lot levied on was interposed by said John W. Whittington, who having died pending the issue formed thereon, plaintiff in error was made a party in his stead. It appears from the evidence that the defendant, 0. C. Whittington, was in the possession of the land at the date of the judgment, and thenceforth to the close of the year 1870. He testified that he sold the land to claimant “ in the spring of 1868,” in settlement of an indebtedness growing out of their father’s estate; that he bad theretofore given him a mortgage on it, and that he remained in pos
Claimant was in possession, by his tenant Wright, in 1871, but it does not satisfactorily appear who, if any one, was in possession in 1872 and 1873.
The admissions and declarations of the claimant, as testified to by Wright, Hancock and Mrs. Harris of his knowledge of the existence of the judgment, and of its being a “better claim ” than his; of his inability to make Hancock a valid title; of his desire to settle or compromise the judgment debt; of his intention, upon failing to settle the judgment, to shelter himself behind defendant’s homestead, and litigate in order to realize as much as possible from the use of the land, were all important circumstances to be considered on the trial of the issue.
On the trial, the jury found the property subject to the plaintiff’s execution. A motion was made for a new trial, on the grounds therein set forth, those chiefly relied on being: “Because the court charged the jury that if the claimant had actual notice of the judgment at the time he purchased the land, that he was not a bona fide purchaser, that the statute did not run in his favor, and that four years’ possession would not divest the land of the lien of the judgment; ” and because the court refused to charge that the fact of notice of the judgment at the time of the purchase, alone would not prevent claimant being a bona fide purchaser. The motion for new trial was overruled by the court, and claimant excepted.
Under these divisions, the law has not operated uniformly and equally. The purchaser who may have shown good faith in his purchase and possession, notwithstanding notice of the judgment, and been successful in his claim under one ruling, would have failed, because concluded by the other. Where judges so eminent for learning and ability differ, doubts will exist, and it is better that the differences which have caused these divisions and doubts be removed, so far as a unanimous judgment of this court can effect it.
Concurring, therefore, in the majority opinions in Sanders vs. McAfee et al., and in Broughton et al. vs. Foster, ex’r, and in the dissenting opinions in the cases cited in the 56 and 64, and adopting, by reference to them, the
Let the judgment of the court below be affirmed.