Spradlin v. Kramer, 146 Ga. 396

146 Ga. 396 | Ga. | 1917

Gilbert. J.

(After stating the foregoing facts.)

1. The petition, contained no prayer for enforcement of the special lien embraced in the contract. The judgment against Vaughan was general. He was adjudicated a bankrupt within four months from the rendition of the judgment on the notes. A deed of reconveyance was duly executed, delivered, and recorded as provided by the Civil Code. Did the bankruptcy render the judgment against Vaughan void? To answer this question is to decide this case. The judgment of the trial court on the motion to dismiss the levy answered the question in the negative, and in this view we concur. Indeed, the question is not an open one in this State. It is true that bankruptcy discharges a lien of a judgment as against other property; but the judgment is effective for the purpose of bringing the property to sale to pay the debt and to subject the property in accordance with the special lien.

In Napier v. Saulsbury, 63 Ga. 477, it was said: “A judgment intended to have a special lien on specific property, such as a lien upon land for purchase money, ought to describe the property.” Failure to describe the property in the judgment or to refer to the same either in the judgment or in the pleadings will not have the effect of depriving the creditor of his special lien as agreed upon in the contract, since such lien is not derived from the judgment, nor does the judgment add anything to it's force and effect.

“The effect of 67f of the national bankruptcy act is not to avoid the levies and liens therein referred to against all the world, but only as against the trustee in bankruptcy, and those claiming under him, in order that the property may pass to and be distributed among the creditors of the bankrupt.” McKenney v. Cheney, 118 Ga. 387 (45 S. E. 433). In analogous cases it has been uniformly held that a court of bankruptcy acquires no jurisdiction of exempt property. Smith v. Zachry, 121 Ga. 467 (49 S. E. 286), s. c. 128 Ga. 290 (57 S. E. 513); Evans v. Rounsaville, 115 Ga. 684 (42 S. E. 100). A security deed passes title. Civil Code (1910), § 3306; Groves v. Williams, 69 Ga. 614. When Vaughan was adjudicated a bankrupt he had no legal title to the land, and therefore the bankruptcy court acquired no jurisdiction of this property or of the lien thereon. Cases cited by the plaintiff in error as holding to the contrary, upon examination, will be found not to conflict with the ruling herein made. They apply to liens acquired “by legal proceedings.” The lien in this case was not thus acquired, but was obtained by virtue of the contract many months prior to the proceedings in bankruptcy. The authorities cited apply to such liens as attachments, laborer’s liens, and the like, which take effect from the date of the levy or filing. “The liens rendered void by § 67f are those obtained by legal proceedings within four months. The section does not, however, defeat rights in the exempt property acquired by contract or by waiver of the exemption.” Chicago etc. R. Co. v. Hall, 229 U. S. 511, 516 (33 Sup. Ct. 885, 57 L. ed. 1306).

It follows from the foregoing, that all that is absolutely essential to the establishment of a special lien in favor of the holder of the note the payment of which is secured by a deed is, that there shall be an execution issued upon a judgment rendered-on the note, a deed from the original creditor to the defendant in fi. fa., made, filed, and recorded, and a levy upon the property therein described. Marshall v. Charland, 109 Ga. 306, 309 (34 S. E. 671). See Coleman v. Slade, 75 Ga. 61, 71; McAlpin v. Bailey, 76 Ga. 687; Bennett v. McConnell, 88 Ga. 177 (14 S. E. 208); Maddox v. Arthur, 122 Ga. 671, 675 (50 S. E. 668); Gillespie v. Hunt, 145 Ga. 490, 493 (89 S. E. 519); Harvard v. Davis, 145 Ga. 580 (89 S. E. 740).

The case of Austin v. Georgia Loan & Trust Co., 115 Ga. 1 (41 S. E. 264), cited by counsel for the plaintiff in error, was considered by this court in the case of Maddox v. Arthur, supra, and it was there held that the rulings in the two cases, did not conflict.

2. The ruling in the second headnote requires no elaboration.

Judgment affirmed.

All the Justices concur. Atkinson, J., concurs in the judgment.