Thе question raised in all enumerations of error is whether the sale of the note and its purchase by Summer, under the circumstances and facts above recited, had the effect of passing to Summer title to the whole of the indebtedness represented by the note. Collaterаl questions raised are whether the levy and seizure of the note amounted to a transfer of it from KBM to Internal Revenue, and hence whether the assertion in the answer of the garnishee that he was not indebted to KBM was true, and, even if not, whether the subsequent sale divested KBM of all right, title and interest in the note; whether the fortunes of the garnishing creditors followed those of their debtor, who was, at the time of levy and seizure, the holder of the note; and whether service of the summons of garnishment after levy and seizure but before the sale afforded to the garnishing crеditors an enforceable lien against the note which could survive its sale.
That the levy and seizure of the note
3
with service of notice on the debtor amounted to a "virtual” transfer, or was tantamount to a transfer of ownership to Internal Revenue, seems to have been settled in United States v. Eiland, 223 F2d 118, 121, where it was asserted that "the service of such notice results in what is virtually a transfer to the government of the indebtedness, or the amount thereof necessary to pay the tax, so that payment to the government pursuant to the levy and notice is a complete defense to the dеbtor against any action brought against him on account of the debt.” And in United States v. Sullivan, 333 F2d 100, 116, it was held that a "Statutory levy is
*223
substantially broader in scope than anything known to the common law, and it is applicable to intangible as well as tangible property. See Glass City Bank of Jeanettе, Pa. v. United States, [
If the affidavit of Mr. Fitzpatrick expresses an opinion
4
to the contrary, it is one as to the legal effect of what occurred and binds no one
(Swofford v. Glaze,
Insofar as the affidavit states the intent as to whether Internal Revenue should acquire ownership of the note by virtue of the levy, seizure and notice, Mr. Fitzpatrick could in no circumstances do more than state his own intent. "A witness can not state his mere conclusion that others than himself knew a fact.”
Bush & Hattaway v. McCarty Co.,
We are thus left to the rulings of the courts as to the legal effect of the action taken.
The garnishment intervening between the levy, seizure and service of notice and the sale could not and did not in any wise affect the status arising from the levy and service of notice. "[N]o сreditor could have acquired any rights . . . with respect to a debt on which the United States had already made a levy and served a notice, the effect of which was to transfer the right to receive payment of the debt to the United States.” United States v. Eiland, 223 F2d 118, 123. Consequently, we must cоnclude that service of the summons of garnishment on Summer after the levy, *225 seizure and service of notice by Internal Revenue afforded to the garnishing creditors no intervening lien or right to have or receive payment from the proceeds of the sale where the whole оf the note and indebtedness were sold and it brought no more than the amount of the government’s tax claim with interest and costs. Even if the garnishment could be said to have afforded an intervening lien it was divested by the sale. 26 USC § 6339 (c).
The rights of a garnishing creditor rise no higher than those of the defendant in fi. fa. What one cannot recover himself cannot be recovered by garnishment against him.
Bates & Co. v. Forsyth,
"The issue formed on a traverse to an answer of a garnishee is whether or not the garnishee was indebted to or hаd assets of the defendant between the time of the service of the summons of garnishment and the time of the answer by the garnishee.
Aiken v. Smith,
. Since the levy, seizure and service of notice was "tantamount to a transferal of ownership” of the note and indebtedness from KBM to Internal Revenue, it must follow *226 that the trial court erred in sustaining the traverse of the garnishee’s answer that he was not indebted to KBM at the time the summons was served upon him, or at any time afterward up to the time of making answer. If he had answered otherwise he might well have subjected himself to a double payment — to the garnishing creditor and to Internal Revenue.
While KBM had a right under 26 USC § 6337 (a)
5
to redeem the note by paying to Internal Revenue the full amount of the taxes, interest and costs up to the time of sale, it had not done so at any time between the service of the summons of garnishment and the making of answer by the garnishee, and indeed did not do so at any time prior to the sale. It is possible that the judgment creditors likewise might have redeemed the note by making payment in behalf of KBM, but they did not. This alternative, however, has obvious problems and pitfalls,
6
practical and legal, a сonsideration of which probably convinced the garnishing creditors that they should not. After the levy KBM’s interest or right under the note was a mere contingency, having
*227
no ascertainable value, and which, after the sale completely expired had no value. It could not be subjeсted by garnishment or other in rem proceedings.
Camp v. Aetna Life Ins. Co.,
Garnishment is a proceeding at law. It is not in equity, and it must be measured by the strict terms of the statute. The courts have no right to enlarge this purely statutory remedy or to hold under it property which is not made subject to the process.
Eager v. Maxon Shirt Co.,
That Summer may have been а stockholder in KBM does not require a different result or conclusion. A stockholder and the corporation are separate entities.
Commonwealth United Corp. v. Rothberg,
What was the effect of the sale? The certificate, issued under 26 USC §6339 is "Conclusive evidence of the regularity of' [the] proceedings in making the sale; and, shall transfer to the purchaser all right, title, and interest of the party delinquent in and to the property sold.” The certificate also discharges the propеrty sold from all liens or encumbrances over which the lien of the United States was superior. 26 USC § 6339 (c).
The whole of the indebtedness represented by the note was sold — not a part only. Thus, the sale vested in Summer title to the note and the indebtedness represented thereby. KBM was completely divested of any right to or interest therein. There is no provision of law for any redemption of the property after the sale.
7
If one wholly a stranger to the situation had purchased at the sale Summer would have been liable to him, but not to the garnishing creditors. If the garnishing сreditors had bought the note at the sale, he would have been liable to them for the full amount due thereunder. This may have been their best remedy. But since Summer bought the note himself he is not now legally obligated to pay it.
8
Cf.
Code
§ 85-710;
Swinson v.
*229
Shurling,
"The purchaser at the sale acquires just the title which the defendant had, — no more, no less.”
Wall Lumber Co. v. Lott-Lewis Co.,
At the sale representatives of KBM and of the garnishing creditors were present. There is in the record a transcript of what occurred, and it appears that the representative of Internal Revenue announced that the note would be sold "as is, where is, and without any recourse against the United States,” informed those present that the minimum bid that would be accepted was $46,515.84, and that the only bid submitted was that of Summer. Specific inquiry was made to the representatives of both KBM and the garnishing creditors as to whether they or either of them wished to submit bids, and each answered that they did not. Cf.
Bearden v. General Motors Accept. Corp.,
The price received upon the public sale was prima facie the value of the note.
Bearden v. General Motors Accept. Corp.,
We conclude that there was no issue raised as to any material fact and the trial court erred in sustaining the traverse to the garnishee’s answer, in granting summary and final judgment to the garnishing creditors, and in denying the garnishee’s motion for summary judgment.
Judgment reversed with direction that judgment be entеred for the garnishee, if. if. Summer.
Notes
Choses in action are not subject to seizure and sale under executions based upon ordinary judgments unless made so by statute.
Fidelity & Deposit Co. v. Exchange Bk. of Macon,
Opinion evidence is not permissible as a basis for the grant of summary judgment, though it may be used in opposition.
Harrison v. Tuggle,
26 USC § 6337 (a) Before sale. — "Any person whose property has been levied upon shall have the right to pay the amount due, together with the expenses of the рroceeding, if any, to the Secretary or his delegate at any time prior to the sale thereof, and upon such payment the Secretary or his delegate shall restore such property to him, and all further proceedings in connection with the levy on such property shall cease from the time of such payment.”
E.g., would the payment be a voluntary one? See
Code
§ 20-1007;
Hill v. Shaw,
There is provision for the redemption of realty under 26 USC § 6338, but none as to any other type of property. See
Lowe v. City of Atlanta,
A moral obligation alone, if one exists, is not enforceable.
Brazell v. Hearn,
A protest likely would have been useless under 26 USC §6339.