Lea v. Yates

40 Ga. 56 | Ga. | 1869

-Brown, C. J.

Suit-was commenced upon a promissory note, upon which 'there are credits, dated pending the action, and at November term, 1860, the counsel for defendants made the following confession, which was entered on the minutes as made: “We confess judgment to the plaintiff for the sum of $........., with interest and cost of suit, reserving the right of appeal.” Upon this confession the counsel for plaintiff entered ,up judgment for $224 58, principal, and $4 71, interest. - In 1865, defendant in fi. fa. sold the land in dispute to claimant, and to those under whom she held, who proved she had no ■notice of the judgment.' On the 10th of April, 1867, the fi.fa. was levied upon the land in the hands of the purchaser, and she filed her claim; and at May terra following, the Court passed an order directing the blank in the confession of judgment, and on'the minutes of the Court, to be filled with the amount specified in the judgment. The claimant denied that the amendment could be made to her prejudice, and insisted that the judgment, resting upon such amended confession of judgment, took po lien upon the property she had purchased from the defendant, without noticé of the judgment before it was amended, so as to make it a valid judgment. The Court held, and so charged the jury, that the judgment so amended took lien on the property from the date of the confession in November, 1860, and the jury found the property subject, and this decision is assigned as error.

When the amount claimed by the plaintifif is plainly and distinctly specified in the declaration, and the jury finds generally for the plaintiff, this Court has held that the verdict is good, as that is.sufficieñtjy certain which can be made certain, and it will be presumed the jury intended to find the full amount claimed by the plaintiff. But this is not that case. Here the confession of judgment is for the sum of $> .......-.. The language used and-the blank left raised a strong presumption that the parties had not agreed upon the sum for which the confession was to be made, but that' there was to be something else done, or some further understanding before the blank was filled. Till it was filled there was nothing to sustain the judgment, and it could not legally proceed against the defendants. While the record was in this condition the judgment took no'lien on the property of the defendants, and we hold that it could not afterwards be amended so as to prejudice the rights of bona fide purchasers from the defendants prior to the amendment. If proper notice were given to the defendants, the judgment, when tiie confession had been amended, became a valid judgment as against them, but not as against bona fide purchasers, in the meantime. '

It was insisted by the learned counsel for the defendant in error, that this was an irregular or defective judgment, which could be made perfect by amendment, and that this was sufficient notice to put the purchaser on inquiry, or in other words, it was constructive notice, and she was not, therefore, in law, a bona fide purchaser, but a purchaser with notice. We do not concur with the counsel 'in this view of the rights of these parties. Till this amendment was made we.think this judgment had no validity. It rested upon neither the verdict of a jury nor a confession by the defendants for anything but cost of suit. The amount of principal for which it was to be rendered had never been agreed upon by the parties, and as there was no definite sum of principal there could be no calculation of interest.

It is true the record was notice to this purchaser and to all other persons; but notice of what? Nptice simply to.what it contained. It was notice of a suit pending in the Court, but of no legal judgment rendered upon it, and as the claimant purchased bona fide before there ever was a legal judgment,-she is protected, and holds her land free from the lien of the judgment which-has since been created by the order of the Court amending the confession.

Judgment reversed.