64 Ga. 706 | Ga. | 1880
Lead Opinion
This was an action of ejectment brought by the plaintiff against the defendants to recover the possession of a tract of land therein described. . On'the trial of the case the jury, under the charge of the court, found a verdict in favor of the defendants. A motion was made for a new trial on various grounds, one of which was, that the verdict was contrary to the charge of the court and therefore contrary to law, which was overruled and the plaintiff excepted.
It appears from the evidence in the record, that Prater, the plaintiff’s lessor, purchased the land in dispute at sheriff’s sale under an execution in his own favor against Hiram Cox, Yarnell, and Kincannon, which issued on a judgment dated 17th December, 1868. The defendant, J. P. Cox, purchased the land in dispute from Yarnell, one of the defendants in fi. fa., through his father Hiram Cox, another defendant in fi.fa., who acted as his agent in making the purchase of the land in April, 1873, went into the possession thereof, and claimed to have been in possession of the land for four years as a bona fide purchaser for a valuable consideration, as provided by the 3583rd section of the Code, .prior to the levy of Prater’s fi. fa. thereon. The court charged the jury to the effect that if they found from the evidence that Hiram Cox purchased the land as agent for his son J. P. Cox, and he had notice of the existence of the judgment at the time of the purchase, that would be notice to his principal J. P. Cox. On the hear
The 2200th section of the Code declares that notice to the agent of any matter connected with his agency is notice to the principal. This we understand to mean actual notice ; that is to say, if the agent had actual notice the principal had actual notice. See 55 Ga., 438. There can be no doubt from the evidence in the record that Hiram Cox, who purchased the laudas agent for his son, J. P. Cox, had notice of the judgment lien upon it at the time of the purchase.
But it is said that notice to the agent of J. P. Cox was not sufficient to affect his conscience with moral fraud, as heretofore ruled by this court in relation to a prescriptive title to land, under the provisions of the 2683rd section of the Code. That section requires that the adverse possession of land, in order to give a good prescriptive title, must be under written evidence of title for seven years. But if such written title be forged or fraudulent, and notice thereof be brought home to the claimant before or at the time of the commencement of his possession, no prescription can be based thereon. It is under this section of the Code that this court has held that notice of the forged or fraudulent written title must be such as to affect the conscience of the claimant. Under the 3583d section all the purchaser has to show is that he is a bona fide purchaser of the land for a valuable consideration and has been in possession of it for four years, then he will hold it discharged from the lien of any judgment against the person from whom he purchased. The statute does not require that the purchaser
Let the judgment of the court below be reversed.
Concurrence Opinion
concurring.
The question dividing the chief justice and the senior associate justice in this case is, as to the legal effect which the notice of an unsatisfied judgment has upon the purchaser of property under section 3583 of the Code. One holds that the notice of the judgment lien prevents him from being such a bona fide purchaser as to protect him against the judgment after four years possession: the other, that he may have notice and still purchase bona fide and claim the protection of his title under a possession of four years.
Innocent purchasers of property for a valuable consideration are always a favored class of suitors, and their rights are protected both in courts of law and courts of equity. They are protected even where their vendors’ title was obtained by fraud, and so too if they buy without notice of
Can there be a case found where a man with notice buys property subject to a judgment who ever expected or intended that it should be sold to pay that judgment? It is well known to him that it is liable to seizure and sale, unless his vendor pay off the fi. fa., or that there is other and sufficient property to pay it, or that the creditor will not proceed against it until the bar of the statute attaches. Suppose his vendor deceive him, or that he was mistaken as to the amount of property subject, and that the creditor seeks to enforce his lien on the transferred property, would it be a just reply to say that the purchase was bona fide and for a valuable consideration and therefore not liable? Or, although he knew that it was liable, and that the amount of property in the defendant’s hands would be that much less with which to pay off th efi.fa., still it was not bought in bad faith to the judgment creditor, as it was bought fairly and honestly from the judgment debtor. The lessening of a debtor’s assets liable to execution by buying it, with notice of the lien, is not such an act of good faith as should protect the purchaser of those assets against the execution, even though four years elapsed before the levy. For these reasons I concur in the judgment of the court.
Dissenting Opinion
dissenting.
For the reasons given by the majority of this court in Sanders vs. McAffee et al., 42 Ga., 250, and also in my own dissenting views in Phillips vs. Dobbins, 56 Ga., 617, I dissent from the judgment of reversal and hold that one who pays full value for land may be a bona fide purchaser thereof, so as to free the land he so pays full value for from the lien of a judgment against his grantor after four years possession thereof, though he, by his agent or otherwise, had full knowledge of the judgment. The sole question is
