146 Ga. 396 | Ga. | 1917
(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 un
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.
Judgment affirmed.