McLendon v. Shumate, 128 Ga. 526

McLendon v. Shumate

128 Ga. 526 | Ga. | 1907

Evans, J.

(After stating the facts.)

1, 2. We do not think that the contention of the plaintiffs in error that the plaintiff in fi. fa. “was estopped by the judgment rendered in the claim case, set np as a bar in defendant’s plea to the equitable petition of the plaintiff” in the present case, upon the principle of res adjudicata, is sound. At the time of the levy to which the claim in that case was interposed, there was still due upon the fi. fa. of the Bank of Washington an unpaid balance', and the bank had never reconveyed its title, and there had therefore never been any redemption. In the opinion in 120 Ga. 401, when the claim case was before this court, it was said: “The title to the land is still vested in the Bank of Washington, and until this title becomes revested by payment of the balance due on the debt to the legal representatives or heirs of Mary McLendon, there is no leviable interest in the land in the heirs or legal representatives of Isaac McLendon, and the levy of the Shumate execution was an absolute nullity.” The judgment in the claim case was conclusive upon the plaintiff in fi. fa. and the claimants, as to everything which was pleaded or could have been pleaded by either, and upon all claims or defenses, under the facts as they then existed. See Hollinshead v. Woodard, ante, 7, and cases there cited. Had the tender by the plaintiff in fi. fa. of the balance due on the bank’s fi. fa. been made prior to the levy in the claim case, and the plaintiff in fi. fa. failed to show this, he would have been concluded by the judgment therein rendered. As was said in Stamps v. Hardigree, 100 Ga. 160, “A judgment subjecting the property [in a claim case] concludes [claimant] ■ not only as to the question actually tried, but also such as might have been made upon the trial.” And the same is true as to the plaintiff in fi. fa. But the balance due on the bank’s fi. fa. had neither been paid nor tendered when the levy in the former case was made, and therefore the status of the title after such payment or tender could not have been in issue. The matter adjudicated by that decision was that the property was not then subject, because the defendant in fi. fa. had no leviable interest in the property, by reason of the fact that a part of the debt for which the security deed to the bank was given was still unpaid, and for that reason the title was still in the bank. Suppose that the claimants had shown that the actual title to the property was in them when the levy was *530made to wbicb the claim was interposed, and they had subsequently transferred the title to defendant in fi. fa., could it be contended for an instant that the judgment in the claim case concluded the plaintiff in fi. fa. from again levying his execution? Certainly not. How, then, can he be concluded by a judgment which merely adjudicates that his former levy was void because the defendant in fi. fa. had no leviable interest at the time of the levy, when, subsequently to that levy, by tender of the balance due on the bank fi. fa. to the holders thereof a leviable interest has been created in the defendant in fi. fa. Suppose, for instance, the claimants should secure an outstanding title subsequently to the judgment -in the present case, superior to that of Isaac McLendon at the time of his purchase and entry, could it then be contended that the judgment finding the property subject would cut off the claimants from asserting their after-acquired superior title? We therefore conclude that since the leviable interest in the estate of Isaac McLendon was created since the levy in the claim case, and could not, therefore, have been then put in issue upon the trial hereof, the plaintiff in fi. fa. in the present case is not estopped by the judgment in the claim case from setting up in the present proceeding such subsequently-acquired leviable interest.

'3, 4. The plaintiffs in error contend, that their ancestor, Mary McLendon, under whom they claim, had a valid prescriptive title by reason of having held the land under open and adverse possession for. more than seven years under the deed from Hill and Truitt, made in 1877, which they maintain was good, at least as color of title; that by reason of the dormancy of the Shumate judgment it attaches only from the date of its revival in 1897, and that at that time Mary McLendon had been-in possession under color of title for more than twenty years. The defendant in error contends that since the plaintiff in fi. fa. was powerless to levy his fi. fa. during the pendency of the homestead, which expired only upon Mary .McLendon’s death, prescription would not run in her favor during that time. “Where the plaintiff in a judgment more than seven years old has had it revived by scire facias, as having become dormant, it is a lien on the defendant’s property from the date of revival only." Foster v. Reid,. 57 Ga. 609. Therefore the Shumate judgment stands exactly as if it had been originally rendered at the time of its revival in 1897. The existence of the *531homestead did not prevent it from becoming dormant. Anderson v. Kilgo, 81 Ga. 699. Mary McLendon’s deed from Sims & Truitt, although their title may have been based upon an invalid sheriff’s deed, was good color of title. Burkhalter v. Edwards, 16 Ga. 593, paragraph 2 of the opinion, on page 596. Her title by prescription ripened in 1884, and was certainly good as against any subsequently-acquired lien against her husband’s estate. Therefore the lien of the revived judgment, attaching only from 1897, could reach only such property as was then in the hands of Isaac McLendon’s administrator. It will therefore be seen that the court erred in rendering a judgment finding the property subject.

Judgment reversed.'

All the Justices concur.