Lane v. Bradfield, 37 Ga. App. 395

37 Ga. App. 395 | Ga. Ct. App. | 1927

Lead Opinion

Per Cubiam.

1. It is well settled by the decisions both of this court and of the Supreme Court that “some overt act of constructive seizure is essential to the validity of the levy of an attachment upon real estate.” Groover v. Melton, 2 Ga. App. 269 (58 S. E. 488), and eit. See also United Provisions Corp. v. Board of Missions, 33 Ga. App. 9 (124 S. E. 820). It is true that a vested remainder in realty is subject to levy under a common law execution (Shipp v. Gibbs, 88 Ga. 184, 14 S. E. 196; Perkins v. Farmers Bank of Doerun, 156 Ga. 841, 120 S. E. 528); and assuming, without deciding, that it may also be subject to attachment if capable of such a seizure as to affect the remainderman with notice, yet since the life-tenant is in possession, and the possession, use, and enjoyment of the property by the remainderman is postponed until the death of the life-tenant, no act of the levying officer in seizing and taking possession of the property can amount to notice to the remainderman. New England Mortgage Co. v. Watson, 99 Ga. 733 (3) (27 S. E. 160); Baker v. Aultman, 107 Ga. 339 (33 S. E. 423, 73 Am. St. R. 132). It follows that an entry of levy upon an attachment reciting such a seizure and taking possession should not be treated as a valid seizure as against a remainder-man.

Decided November 18, 1927.

2. Irrespective of whether written notice to the remainderman or other person as his agent could supply the deficiency in such seizure and the entry thereof, it is. not enough to show that a letter containing the notice was sent to the defendant remainderman by the levying officer by registered mail and was receipted for by a third person purporting to act for the defendant but whose authority to do so does not appear (Wilber Stock Food Co. v. Wesley, 14 Ga. App. 179, 80 S. E. 677); and a second like notice sent by the attorney for the plaintiff and receipted for by the defendant in person, subsequently to the return term of the attachment, would also be ineffectual as affording legal notice of the attachment. The notice must be at least official (Baker v. Auliman, supra), and must be made prior to the return term of the levy. Albright-Pryor Co. v. Pacific Selling Co., 126 Ga. 498 (6) (55 S. E. 251, 115 Am. St. R. 108).

3. Nor is the life-tenant in possession the agent of the remainderman for the purpose of receiving written notice of the levy of the attachment. Pool v. Morris, 29 Ga. 374 (74 Am. D. 68).

4. It follows that the court erred in overruling the defendant’s motion to dismiss the attachment.

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur. Bell, J., dissents. Lovejoy & Mayer, for plaintiff in error. E. T. Moon, B. IF. Marlin, contra.

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Dissenting Opinion

Bell, J.,

dissenting. I can not concur in the conclusion reached in the first division, nor in the judgment of reversal. An undivided interest in a vested remainder in realty is subject to levy under a common-law execution, and since the code provides that an attachment against a debtor may be levied upon any property of the defendant, real or personal, to be found in the State, such remainder interest in realty is also subject to attachment. Civil Code (1910), §§ 5060, 5061, 5075, 5078. The real crux of the case under consideration is whether a vested remainder in realty is capable of such a seizure as to affect the remainder-man with notice. While the remainder in question was such that the defendant’s use and enjoyment of the property was postponed until the death of a life-tenant, who in the meantime held and was entitled to hold possession, and while the life-tenant may not be treated as the tenant or agent of the remainderman, still the presumption is that a person will so overlook his own property and will keep himself so informed with regard thereto as to become apprised of a seizure of the character appearing in this case, notwithstanding he is not in possession and his right of possession may not accrue until the happening of some future evént. McCrory v. Hall, 104 Ga. 666, 668 (30 S. E. 881), citing Smith v. Brown, 96 Ga. 274 (23 S. E. 849). Thus, such a seizure, even as to the defendant remainderman, will sufficiently meet the rule that “some overt act of constructive seizure by the levying officer is essential to the validity of the levy of an attachment upon real estate.” Groover v. Melton, 2 Ga. App. 269 (supra); Miller v. Swilley, 24 Ga. App. 278 (100 S. E. 641); United Prov. Corp. v. Board of Missions, 33 Ga. App. 9 (supra); 6 C. J. 204, and cit.

I do not dissent from the conclusions stated in the second and third divisions, but think that written notice to the defendant or other person could not affect the matter and that questions in reference to such notice are irrelevant. Guernsey v. Beeves, 58 Ga. 290 (1);. Tillman v. Fontaine, 98 Ga. 672 (27 S. E. 149); Tuells v. Torras, 113 Ga. 691 (4) (39 S. E. 455); Civil Code (1910), § 6026. I am of the opinion that the defendant’s remainder interest was subject to attachment and that the record shows a valid execution of the writ. I therefore think the judgment should be affirmed.