32 Ga. App. 620 | Ga. Ct. App. | 1924
Lead Opinion
On January 5, 1920, Mrs. Pou sold a house and lot to Smith, taking from 'him three promissory notes for $2,000 each, respectively maturing January 1, 1921, 1922, and 1923, and giving him a bond for title, under which he went into possession of the property. On December 1, 1920, Smith executed to Few an assignment of “the within bond for title, with all my
Where a garnishee paid money into court and asked to be discharged, although answering that he was not indebted to the defendant but was indebted to another, and where such other person filed a petition, asking to be made a party to the proceeding and in effect asserting a claim to the money so paid by the garnishee, and an order making such person a party was entered and he participated in the proceedings, without any objection or exceptions being taken by the plaintiff, such third person will be treated as a claimant, although he filed no bond to dissolve the garnishment under section 5282 of the Civil Code (1910). The statutes with reference to claims in garnishments, while providing that the claimant “may” dissolve the garnishment “by filing . . a bond . . conditioned to pay to the plaintiff the sum that may be found due to said defendant upon the trial of any issue that may be formed upon the answer of the garnishee, or that may be admitted to be due in said answer, if untraversed,” and that upon such bond being given, “the garnishee shall pay over or deliver any money or property to the claimant upon the dissolution of the garnishment in manner aforesaid” (Civil Code, § 5288), do not make the filing of such a bond vital to the assertion of the claimant’s rights where the claimant seeks no dissolution of the garnishment or possession of the property. See Rutherford v. Fullerton, 89 Ga. 353 (2) (15 S. E. 471); Drought v. Poage, 3 Ga. App. 178 (3) (59 S. E. 728). Especially would this be true where no objection or exception was taken by the plaintiff in garnishment to the order making the claimant a party and to his subsequent participation in the proceedings. It is a different rule which requires that, when an ordinary claim is filed to property levied upon, the claimant must file a bond or pauper affidavit in order to have the claim adjudicated. Civil Code (1910), §§ 5158, 5164; Hand v. Hall Mdse. Co., 91 Ga. 130 (2-4) (16 S. E. 644). Thus, where such a garnishment proceeding was tried in the city court upon the issues raised by the traverses to the garnishee’s answer as amended, and was determined in favor of the claimant and against the plaintiff in fi. fa., who proceeded therefrom by certiorari, and where the superior-court judge entered
“While a judgment in this State, in a general sense, binds all the property, both real and personal, of the person against whom it is rendered, the lien of such judgment, in the special sense which prevents the alienation of the property of- the debtor after its rendition, attaches only to such property of the debtor as is capable of seizure and sale under execution based upon such judgment. Choses in action are not subject to seizure and sale under executions based upon ordinary judgments, and can only be reached by the judgment creditor through a garnishment, or some other collateral proceeding; and inasmuch as such garnishment or collateral proceeding is necessary to fix the lien of the judgment so as to make it effective, an assignment of the chose in action by the debtor before the institution of such collateral proceeding passes to the assignee the property of the,, debtor in the chose in action assigned, freed from the lien of a general judgment previously rendered against the assignor.” Fidelity & Deposit Co. v. Exchange Bank, 100 Ga. 619 (2), 625 (28 S. E. 393).
(a) Garnishment proceedings in this State, being statutory, are not controlled by equitable rules in the distribution of the fund, such as obtain in direct equity proceedings or in money rules, where equitable principles have been held applicable. Phillips v. Wesson, 16 Ga. 137 (3), 140; Conyers v. Bowen, 31 Ga. 385; Bowling v. Amis, 58 Ga. 400 (1), 402. Especially is it true that equitable rules cannot be applied to garnishments tried in city courts or other courts with only common-law jurisdiction, and “without jurisdiction to grant affirmative equitable relief such as the plaintiff would require” in order to recover. Southern Flour & Grain Co. v. Northern Pacific Ry. Co., 127 Ga. 626 (1), 631 (56 S. E. 742, 9 L. R. A. (N. S.) 853, 119 Am. St. R. 356, 9 Ann. Cas. 437); Woodruff v. McDonald Furniture Co., 96 Ga.
(b)- Where, therefore, a plaintiff in garnishment in a city court would not be entitled to recover against the garnishee, under his traverse of the garnishee’s answer, except by the application of a purely equitable rule applicable only in equitable proceedings or money rules, the plaintiff cannot prevail. The cases of Wilkins v. Gibson, Thrash v. Harman, and Wright v. Brown, supra, cited by the learned judge of the superior court in the opinion supporting his judgment, as well as the cases upon which the rule in the Wilkins case is planted, viz. Dawson v. Equitable Mtge. Co., 109 Ga. 389 (34 S. E. 668), and Ford v. Holloway, 112 Ga. 851 (38 S. E. 373), are distinguishable from this ease, in that none of those eases was a garnishment case, but the three Supreme Court authorities involved equitable pleadings and proceedings pending in superior courts, and the two Court of Appeals authori
The Wilkins case is further differentiated from the instant case in that in the former no assignment of the rents in question to a creditor, such as here claimed, was involved, but the question arose in an equitable" proceeding involving the distribution of rents collected by one who was administrator of the land in question, and as to an accounting for such rents with a creditor firm, of which such administrator was a member, and to which such rents had been paid. It was also in that case apparently recognized that, while such creditor firm, in possession under a security deed from the debtor, would under an equitable rule be accountable to the plaintiff creditor, as holder of a senior security deed, for the rents collected by the firm or by the administrator member (because of the depreciation in value of the security and the insolvency of the debtor’s estate), nevertheless such liability would be only “for whatever amount they had realized from this source over and above the amount necessary to pay their debt.” (113 Ga., p. 57.)
“Where, under a contract for the sale of land, the vendor executes to the vendee the usual bond for titles, and delivers to him the possession of the premises, even if the latter fail to pay the purchase-money at maturity, he may nevertheless retain possession, either by himself or his tenant, until such time as he shall be legally evicted therefrom by the vendor; and the tenant who enters under the vendee cannot, without first surrendering his possession to the latter, attorn to the vendor upon any supposed right of the latter, without the consent of the vendee to rescind the contract of sale.” Broxton v. Ennis, 96 Ga. 792 (1, 2) (22 S. E. 945); Guin v. Hilton Dodge Lumber Co., 6 Ga. App. 484, 486, 488 (65 S. E. 330); Scott v. Ward, 23 Ga. App. 416, 420 (98 S. E. 412). The right of the vendee to hold and control the possession,' with the incident rents, is analogous to that of the grantor, retaining possession under his equity of redemption, as against the grantee in a security deed. See Stevens v. Worrill, 137 Ga. 255, 257 (73 S. E. 366); Stevens v. McCurdy, 124 Ga. 456, 458 (52 S. E. 762); Polhill v. Brown, 84 Ga. 338 (10 S. E. 921). Such a bond for title is assignable either absolutely or as collateral. Where the assignment is absolute, the assignee acquires all the rights and equities to which the assignor was entitled thereunder.
(a) The obligee in possession under a bond for title is entitled to lease the premises and to receive the profits therefrom (27 Cyc. 1244, 1245), which rents, accruing during such lawful possession, are themselves subject to his disposal by valid assignment. See Vason v. Ball, 56 Ga. 269, 270. Bent is personalty. Autrey v. Autrey, 94 Ga. 579 (20 S. E. 431). “Personalty to which the owner has a right of possession in future . . is a chose in action” (Civil Code of 1910, § 3648)-; and the claim of a landlord for rents is on the same basis as any other chose in action. 16 B. C. L. 914, § 421. The holder of a bond for title, lawfully in possession of property thereunder, may therefore, without transferring the bond itself, assign to another such right of possession, with the right to lease the premises to a tenant and receive the rents until the obligee’s possession is terminated by the vendor’s action of ejectment or by a lpvy of his claim after reduction to judgment in the manner prescribed by the statutes. Where such an assignment of the rents and profits is inoperative as a good assignment in law, it may nevertheless, in a proper case, take effect as a good equitable assignment.
(b) “Under our Code [of 1882], § 2244 [Civil Code of 1910, § 3653], all choses in action are assignable, but as construed by the decisions . . the assignment must not rest in parol but must be in writing.” Hartford Fire Ins. Co. v. Amos, 98 Ga. 533, 534 (25 S. E. 575); Foster v. Sutlive, 110 Ga. 297 (34 S. E. 1037). The writing is what renders it an assignment in law. The purpose of a written assignment, however, is primarily to vest legal title in the holder of the chose in action, in order that he may have a right of action thereon in his own name; and one who takes a chose in action by an oral assignment under facts and circumstances rendering it valid as an equitable transfer has none the less the rights of an equitable owner, who may file a claim
In the instant case the record shows that the defendant in fi. fa. had gone into possession of a house and lot under a bond for title executed January 5, 1920, and that on December 1, 1920, prior to the maturity of the three purchase-money notes falling due January 1, 1921, 1922, ^and 1923, the defendant vendee had transferred to the claimant his bond for title by a written assignment on the back “as collateral security” for a $3,000 note of that date, due January 1, 1922. Under the rule stated in the third division of the opinion, such assignment of the bond for title merely as collateral security did not entitle the assignee claimant to the rents and profits arising from the premises. The
Judgment reversed.
Rehearing
ON REHEARING.
This case was determined by the judge of the superior court on the theory that the defendant in error, Mrs. Pou, was equitably entitled to the rents and profits of the land conveyed by her under bond for title, and it consequently does not appear that, the validity of the alleged previous oral transfer of the rents and profits by Smith to Few was considered by him to be the controlling factor. As set forth under the second division of the syllabus, this court does not think that this equitable principle has application in a garnishment. of this character; .and in writing the original opinion the determining factor as viewed by this court was the validity and priority of the alleged oral transfer of the rents by Smith to Few. Under the particular facts of the case, there were many and varied phases argued in briefs of counsel, and this court failed to take cognizance of one of the contentions referred to but not elaborated in briefs of counsel for defendant in error, to the effect that the trial court erred in receiving, over his motion to exclude, the oral testimony relating to the parol assignment of the rents by Smith to Few, under his contention that the evidence disclosed that whatever trade was made between the. parties had been reduced to writing, that the
Judgment adhered to.