6 S.E.2d 913 | Ga. | 1940
1. Under the Code, § 110-511, knowledge of the existence of a judgment against the seller does not, standing alone, constitute prima facie evidence of mala fides on the part of the purchaser, but such knowledge is a circumstance which the jury should consider along with other evidence bearing on the question of good faith. The assertion in the opinion in Danielly v. Colbert,
2. The other special grounds of the motion for a new trial are without merit. Since the error indicated in the foregoing note requires the grant of a new trial, this court will not rule on the general grounds raising the question of the sufficiency of the evidence to support the verdict.
1. Ground 2 of the amendment to the motion for new trial assigns error on that portion of the charge which instructed the jury that notice to the purchaser of a subsisting judgment against the property is only prima facie evidence of mala fides, and that the purchaser may rebut such presumption by showing that he acted in good faith toward the judgment creditor. It is insisted that this charge placed on the claimant a burden which the law does not impose, and that it was error to charge that such notice was "prima facie evidence of mala fides." This assignment of error squarely presents for determination by this court the question as to the exact legal effect of knowledge by the purchaser of the existence of the judgment. Unfortunately there is apparent conflict in the decisions of this court on this question. It was ruled upon in each of the following cases, with at least one dissent from the majority ruling. Sanders v.McAffee,
It is clearly not the fault of the trial judge that he erroneously instructed the jury on this question, because the language employed by him is almost identical with the language which we now hold is obiter dicta. The decision in Danielly v.Colbert, supra, was rendered on November 20, 1883, and in less than five months thereafter, on April 8, 1884, in Sluder v.Bartlett,
It is true that under the statute (Code, § 110-511), a purchaser seeking the benefit and protection of the statute must prove three things: (1) that he acted in good faith; (2) that he paid a valuable consideration; and (3), in cases involving realty, that he has been in possession for four years. This places the burden of proof upon such purchaser to prove good faith, but it does not encumber him with the further burden of making this proof while bearing a badge of fraud solely because he purchased with knowledge of the existence of the lien. In the present case the claimant is entitled to undertake to carry the burden required of her by the statute, without the handicap which the charge placed on her by declaring that knowledge of the existence of the lien was prima facie evidence of bad faith or fraud; and it was error so to instruct the jury.
2. Since the evidence on another trial may not be the same, no ruling is made on the general grounds of the motion for a new trial, raising the question of the sufficiency of the evidence. The other special grounds are without merit.
Judgment reversed. All the Justices concur. *593