110 Ga. 56 | Ga. | 1900
Deveney, Hood & Co. sued out an attachment against Musgrove Burton on the ground of his absconding, and the same was, on January 18, 1898, at 4 p. m., by the sheriff levied upon a certain house and lot, and also upon a one-fourth undivided interest in 400 acres of land, as the property •of the defendant. To this levy Robert H. Burton filed a claim. On the trial of the claim case in Burke superior court the following facts were substantially shown by the testimony: The attachment was introduced, showing a levy by the sheriff on the property claimed, made on January 18, 1898, and an entry of the deputy-clerk of the superior court that the attachment hád been entered on the general execution docket on the same day. The declaration in attachment was filed March 14, 1898, setting forth the debt, the property levied on, and the date and hour of the levy; and the judgment rendered upon the declaration was entered on June 13, 1898. From that judgment the fi. fa. was proceeding. A tenant of the defendant in fi. fa. was introduced, and stated that at the time of the levy of the attachment he was in possession of the house and lot in Midville, Ga., and had been for several months in possession of the premises under a contract of rental from the defendant in fi. fa., Musgrove Burton, who had been in possession thereof since the death of his aunt, Sarah Y. Burton, in 1896; that he talked with Robert H. Burton in reference to renting the house and lot from Musgrove Burton, before renting same. Plaintiff further introduced in evidence what purported to be the last will and testament of Sarah Y. Burton. In this paper she devised the house and lot and furniture in Midville, Ga., to Musgrove Burton. The plantation of 400 acres she devised should be equally divided between R. IT. Burton, Julia Bowen, Sarah J. Burton, and Musgrove Burton.
The claimant introduced in evidence a deed from Sarah Y. Burton to Robert II. Burton, dated May 21, 1896, recorded January 26, 1898, to a certain lot of land lying in Midville, Ga., containing one and one half acres, more or less, the deed giving the boundary thereof. He also introduced a deed to himself from Musgrove Burton, defendant in fi. fa., dated March 18, 1898, recorded March 24, 1898, reciting a consideration of $300.00, and conveying a one-fourth undivided interest in the 400 acres of land levied, on. The attachment docket from the superior court was introduced, showing an entry thereon, returnable to the March quarterly term of the count}' court, giving the amount of the debt and date and hour of the levy, but the attachment docket failed to show a description of the property levied on; nor was there' any description of this property upon the general execution docket, upon which the attachment was likewise entered. The attorneys for the claimant, J. J. and S. II. Jones, testified that, soon after the levy of the attachment in this case, they made an examination of the attachment and general execution dockets. They found the entry on the general execution docket as it appeared thereon, but they found no entry on the attachment docket. It further appeared from the testimony of S. H. Jones that he went a second time and examined the dockets, and found the records as they were when first examined. Robert H. Burton, the claimaint, testified that he had no notice of the levy of the attachment on the property claimed by him. He was the father of Musgrove Burton; made no investigation to learn what property was levied on, but he kneAV the attachment had issued; his son was in Texas, and he had no other property. Plaintiff in fi. fa. in rebuttal introdxiced evidence showing that, when the Joneses
So far as the record shows, the evidence fails to specifically identify the one and a half acre lot to which claimant showed a deed from Sarah Y. Burton, made in 1896, as the same property upon which the levy was made. But, apart from this, it appears that the defendant in fi. fa. went into possession of this lot under the bequest contained in the paper of Sarah Y. Burton, devising the land to him, and this by virtue of an agreement and consent of all the heirs at law of deceased, including his father, the claimant in this case. In Gay v. Sanders, 101 Ga. 601, it was decided that where certain heirs at law of an intestate agreed in writing to the probate as a will of a paper which was attested by only one witness, and under such agreement it was probated by the ordinary, a distribution because of that agreement would be binding on the heirs who were sui juris and consented thereto. We do not think that there would be any question that these parties who applied for the probate of the will, and took the property thereunder, are estopped from making any attack thereon, whether the court had any jurisdiction or not. In this connection see Mandeville v. Mandeville, 35 Ga. 243; Hurst v. Whitley, 47 Ga. 366. We do not understand that counsel for defendant in error call into question the validity of défendant’s title on account of defect in the execution of the alleged will under which he acquired such title, but insist that the evidence demanded the verdict, for the reason that the claimant, when he purchased from his son, had no notice that the attachment had been levied upon the land, there being a failure to record upon the proper docket a description of the land, as required by law. It appears from the record that the declaration in attachment was filed March 14, 1898, and
Conceding, therefore, that this failure to describe the land on the record constituted the entry invalid as a notice to third parties, yet this rule, under the law, could apply to no one but those acting in good faith and without notice. We think there was certainly enough developed by the testimony'in this case for the jury to infer the claimant was not without notice of the levy of this attachment. Tie was certainly upon sufficient notice to put a prudent man upon inquiry. Tie knew that the attachment had issued. He knew that the property upon which it was levied was the only property owned by his son, the defendant in fi. fa. His attorneys went to the docket with the view of seeing if this particular statute had been conformed to by the levying officer. These attorneys saw that the attachment had issued, and had been levied upon property. If, therefore, either the claimant or his attorneys had knowledge of such facts in connection with this transaction as would not only serve to put them upon inquiry as to the true condition of things, hut actually knew enough to infer that the identical property had been seized under this attachment, he would in law be chargeable with notice, and could not he said to be acting in good faith and without notice when he purchased the land. Hunt v. Dunn, 74 Ga. 120; Montgomery v. Hunt, 99 Ga. 506. When the claimant’s attorneys in this case saw that an attachment had been issued and levied upon the property of this defendant, they could readily have inferred it was on this identical property, as it was all he had, according to the testimony of the claimant. If they, as attorneys of claimant, were making this investigation in the interest of their client, then the claimant is chargeable with whatever notice such an agent had. Civil Code, §3027; Prater v. Cox, 64 Ga. 706; Hillyer v. Brogden, 67 Ga. 26. Applying these rules of law to the facts in this case, we think there was' ample evidence for a jury to have inferred that this claimant was not a bona fide purchaser without notice of a levy on the property in dispute; and, under all the facts and circumstances, we can not say that there was no evidence upon which a jury
Judgment reversed.
