96 Ga. 340 | Ga. | 1895
The facts ai’e sufficiently set forth in the official report. This case was tried before the Hon. Alex. O. King, judge pro hac vice in the court below, without the intervention of a jury, on an agreed statement of facts. In deciding the case the judge viewed it from two points of observation: first, as to the general rule of law determining the status of judgments; and secondly, as to how the facts affected the application of the rule in this particular case. From the legal standpoint he
The judge below held the property levied on not subject to the execution, but, in'his written opinion which was made a part of the l’ecord of the case here, he held, that in a contest between the deed and the judgment, the latter although younger would, because recorded, have become a lien on the land conveyed in the elder and unrecorded deed, but for the fact that the evidence in the case showed the vendees went into actual possession of the land before the rendition of the judgment which, in his opinion, served to dispense with the necessity of its record; in other words, the judge held that under the first section of the registry act of 1889, a recorded junior judgment against the vendor in an unrecorded deed became operative as a lien upon the property previously conveyed, unless the deed was saved from the necessity of record by actual possession of the
The plaintiffs in error bring this case here on four assignments of error, as follows: first, the court erred in finding in favor of claimants, T. J. and N. R. Simmons; second, in not finding against claimants, and dismissing the suit at their cost; third, in not finding for plaintiffs in fi. fa., ¥m. O. Donovan and S. O. Evans, on all the issues involved; fourth, in finding that the agreed statement of facts showed the plaintiffs in fi. fa. had any notice of the claimants’ title. The first, second and third assignments of error are simply three different ways of saying the same thing, and we will so treat them. This brings us to the construction of the act of 1889, entitled “an act to provide when transfers and liens shall take effect as against third parties.” This act, one branch of it, was before this court for construction in two eases reported together in 93d Ga. (page 768), namely the case of Bailey v. Bailey, and the case of Heard v. Hubbard, Justice Lumpkin delivering the opinion of the court. The question now before the court, namely, whether or not the lien of a judgment against the grantor in a deed?
Secondly: The principles announced in the second and third head-notes need no enlargement. From the foregoing, while we are of the opinion that the judge below properly held the land not subject, we have thought it advisable, for the l’easons given, to comment at length upon his written opinion touching the legal