Phillips v. Dobbins

| Ga. | Jul 15, 1876

Jackson, Judge.

1. The main question in this case is whether a purchaser for value, with actual notice or knowledge of a judgment, is a bona fide purchaser, and within the protection of the four years’possession secured by the Code, section 3583? Upon that question I am requested to deliver the opinion of the majority of the court at the same time that I give my own reasons for dissenting from that opinion and the judgment which necessarily follows it. The majority of the court construe all the statutes in relation to this subject together, and base their opinion mainly upon the idea that the words bona fide in the act of 1855-6, and in the Code, were intended by the law.-makers to mean the same thing as the words “without actual notice of such judgment,” which are the words used in the acts of 1822 and 1852: Cobb’s Digest, 437; Acts of 1851-’2, 238; Acts of 1855-’6, 236;. Code, section 3583. The words, “for a valuable consideration,” appear in all the acts; the words “bona fide” are not in the act of 18.22 qr 1852. The act of 1852 amended the act of 1822 only in respect, to time, protecting four years’ possession in the same way and to the same extent that seven years’ possession was protected by the act of 1822. The act of 1856 leaves out the words “without actual notice of the judgment,” and inserts “bona fide,” and the Code follows the act of 1856. Now, my brethren think that the fact that the words “without actual notice” are left out of the act of 1856, and the words “bona fide” put in, the latter words are put in in lieu of the former, and are intended to convey the same idea, and they say certain provisions of the Code and decisions of this court can be cited to the effect that the terms “bona fide” and “without actual notice” are equivalent, and mean substantially the same thing. They, therefore, hold that no man can be a bona fide purchaser, so as to bring himself within the protection of the Code, in section 3583, who has actual notice of the judgment, and reverse the ruling of the majority of this court in Sanders vs. McAffee, 42 Georgia Reports, 250.

2. In respect to the letter of the attorney at law, Mr. Hammond, we all think it was not intended to be a release of this property from the lien of the judgment, and if it had been so intended and its words had so imported, the majority of the court are clear that the attorney at law to collect this claim, had no right to release any property from the lien of the judgment without the consent of his client, and that the peculiar facts of this case do not clothe the attorney with any but ordinary powers. In the judgment of a majority of this court, therefore, Mr. Dobbins is protected neither by his four years’ possession nor by the paper or letter written to him by Mr. Hammond, the plaintiff’s attorney. I differ from my brethren decidedly on the first point, and I think that the transaction between Mr. Dobbins and Mr. Hammond, and the the facts of the case, generally, throw great light upon the “bonafides” of the purchaser, and make the case as clear asa sun-beam

In the first place, “ bona fide” in latin means “good faith,” nothing' more, nothing less. The words when anglicised, used in English, common every day parlance, mean precisely the same thing. Hence the dictionary says the word anglicised means “in good'faith, without fraud or deception:” Webster’s Unabridged Dictionary, 135. This, then, is the ordinary signification of these words, and the Code declares that in construing this statute I shall apply this ordinary signification to these words, unless they are words of art or connected with a particular trade or subject matter: Code, section 4. They are not words of art, they are connected with no trade, the subject matter is the lien of judgments in respect to the purchase of land and its possession. The subject matter being such purchase, and the words applied to the purchaser, I feel bound to apply to them their ordinary signification as used in connection with this subject matter. Turning, then, to Bouvier’s Law Dictionary, volume I., 211,1 find the same definition, to-wit: “good faith, honesty, as distinguished from bad faith.” “A purchaser bona fide,” says the same authority, “is one who actually purchases in good faith,” quoting Kent, and numerous authorities.

These words do not mean notice or want of notice. It is true that want of all knowledge of the existence of the judgment would preclude all idea of bad faith in the purchaser to the plaintiff in judgment, of all collusion of any sort with the defendant; but it does not follow that knowledge of the existence of the judgment is proof conclusive of bad faith towards the plaintiff or of collusion with defendant, or of deception of any sort. It may be a circumstance which, when connected with other circumstances, such as getting the land at a less price or letting defendant cultivate a part of it, might show bad faith, but standing by itself it cannot mean bad faith and be conclusive evidence, which nothing can rebut, of such bad faith. The facts of the case at bar are conclusive to my mind of the force of this reasoning. If ever there was a bona fide, honest purchaser for value upon earth, Dobbins is one. He bought the property through a real estate agent, Adair; paid full value for it; paid off certain judgments upon it; and hearing that these judgments were outstanding, went to Adair and told him he could pay no more money to go to defendant, Morrison, until these were satisfied, or he got a good title clear of these incumbrances. Adair went to Hammond, who held the judgments as collateral security on a debt Philips owed Holliday, and on another debt Holliday owed Beynolds. So there were three persons interested in the judgments — Beynolds, Holliday and Phillips. Hammond held them as attorney for all three; said he controlled them exclusively, and wrote the letter embodied in the evidence to Dobbins, at Adair’s request, and on the faith of that letter Dobbins paid over the balance of the money to Adair, which otherwise would have been used by him to pay these judgments off. The letter informs him that there is ample property bound as purchase money for the judgments and besides all the estate of Morrison, as trustee, is so bound, and. the only reason the writer would not release the land Dobbins bought, is that, in law, it would release all the other property. Of course Mr. Hammond meant that he would have given a valid release, and got the necessary signatures to it, if his own would not have done, thereby indicating his exclusive control of the ji.fas. more fully to Dobbins’ mind.

Are not these facts conclusive of good faith in Dobbins? What deception did he use toward anybody ? What bad faith ? If no bad faith, then his faith was good, and his works show it to be good. Every act of his is the fruit of good faith. There was no deception, no fraud, no collusion, no trickery in what he did. He did not make one cent by it, but was induced by the attorney of the three interested parties to pay the money, the full value of the land, to Adair, when he would have paid it to these judgments. That attorney was the only human being to whom he could have gone for information and direction. He could not have paid the judgment to Phillips for Holliday was inested, nor to Holliday for Reynolds was interested. Nor to Reynolds for the other two were interested. The attorney, Hammond, was the only person with whom he could deal in respect to these judgments because he was attorney for all parties in interest, and he alone represented all and could guard the interests of all.

It is true Hammond did not release the land, but he induced Dobbins to part with his money upon representations which he made. At all events he communicated to Dobbins facts and made representations upon which Dobbins acted, and which show conclusively the good faith of Dobbins toward the plaintiff in fi. fa. and the absence of all collusion with the defendant. These facts rebut any presumption which could arise from knowledge of the fi. fa., and show Dobbins to have been an innocent purchaser for value, acting bona fide, and holding his honest purchase for four years. It cannot affect the question that Hammond’s representations be thought truthful at the time. If they turned out to be false and fruitless, and a third party was damnified who acted on them, the effect is the same; and whose is the fault that they turned out to be false and fruitless? Hammond swears that it was owing to the depreciation of the property consequent upon time, that he failed to make the money out of the other property, and that Phillips, the plaintiff now pressing this fi. fa., would not let him press the collection of the judgment from Morrison, because he had a law suit against Solomon, security for Morrison, of much more importance and value, and Morrison’s testimony was important against Solomon in that case, and he must keep friends with him until that case was tried. So that the depreciation of the other property of defendant made it necessary for Hammond to press this judgment on this land, that depreciation was caused by time, and that time was needed by the plaintiff injñ. fa. until defendant in fi.fa. had testified for him in another case. It does seem to me if there was any deception, collusion, or fraud, it lay somewhere between the plaintiff and defendant in fi. fa., and the claimant, Dobbins, was perfectly innocent of it all. Yet the single fact that he. knew the existence of this judgment is made to outweigh all these circumstances which, to my mind, cover his case with equities thicker than shingles or slate cover any house in Atlanta.

I think, therefore, that this case illustrates the propriety of the decision of the majority of this court in Sanders vs. McAffee, 42 Georgia Reports, 250, and I submit the foregoing additional reasons to those given by Judges Lochrane and McCay in that case. So far from agreeing that leaving certain words out of a preceding statute and inserting other and different words in a subsequent one on the same subject matter, show that the legislature meant that the new words should convey the same idea with the old words, though different in ordinary parlance and legal signification, I think that fact shows just the opposite; that they intended to change the meaning because they changed the words. If they had meant the same thing they would have used the same words. The fact that such a lawyer as Judge Cone was the author of the change made by the act of 1856, strengthens my conviction that the meaning was intentionally changed. In respect to the levy made within the four years’ possession, and immediately dismissed, I have to say, that in my judgment it does not amount to a disturbance so as to affect the peaceful possession of four years. It must be pressed, and if not prevented by legal impediments, such as claims or illegalities, kept moving at least, if not pushed to an eviction. Besides, the claimant had no legal notice of the levy. In view of all the reasons I can bring to bear upon the subject, I feel constrained to adhere to the ruling of the majority of this court in the case cited from 42d Georgia Reports, and to dissent from the majority in the case at bar. I think that to permit this ji.fa. to sell Dobbins’ land, purchased under these circumstances, and held for four years in peaceable possession, is not only to violate the plain letter of section 3583 of our Code, but to disregard and nullify the spirit and .equity of that statute, and to permit covin and deception to overthrow plain dealing, honesty and good faith.