Thompson v. Moses

43 Ga. 383 | Ga. | 1871

McCay, Judge.

We decided in the case of Sharman vs. Howell, 40th Georgia, 257, that the application of a defendant in execution to be declared a bankrupt, did not affect the right and duty of a sheriff to sell property levied on at the date of the petition. The lien of the judgment is preserved by the bankrupt law, and it is at the option of the plaintiff in the judgment to proceed with his execution, or to go into the Bankrupt Court and prove his debt. On looking more closely in the subject, we are fully satisfied with our decision in that case. Under the Bankrupt Act of 1840, the Supreme Court of the United States held this very position: Swazers, assignee, vs. Best, 3d Howard Reports, 161. The Act of 1869 is, in this respect, very much the same. No case of this kind, under the Act of 1867, has come before the Supreme Court, so far as we know. But the decisions of the District and Circuit Judges have been uniformly in accordance with the view we have taken: See Bump on Bankruptcy, 362; 1 Bankrupt register, 150,167; 2 Bankrupt Register, 150. We do not say that the Bankrupt Court may not, if it becomes necessary to a proper disposition of the bankrupt’s effect, compel the judgment-creditor, who has made a levy, to come into that Court, by special proceedings against him for the purpose. But we are clear that, in ordinary cases, the sheriff may proceed with a levy made before the petition is filed. If this be the law, the title of the defendant in fi. fa. was divested by the sheriff, and never passed at all to the assignee. By our Code, section 1753, the wife only has dower in the lands of which her husband died seized. At his death he had neither title, possession nor right in this land, and the wife’s right of dower did not attach, for the simple reason that the land had been sold by the sheriff, and the title, without qualification, had gone to the purchaser.

We incline to agree with the argument of the counsel for the plaintiff in error, that the Code, section 1753, is to be construed in harmony with the previous Acts in reference to dower, and that the right of the widow to dower must be divested by some of the modes provided by the Acts of 1826, 1842, or other Acts; for by the Code, section 1754, a naked conveyance of the title in trust for creditors, as is the case of an assignee in bankruptcy, does not, as it seems to us, bar the right of dower, if the husband dies before the property is sold, and passes to a purchaser under the bankrupt law. Under our Act of 1842, a sale by the sheriff does this; but a mere seizure would not do so. We do not, however, care to go fully into this question, since under the Act of 1842, (Cobb’s Digest, 179,) the wife’s right of dower was, in this case, barred by the conveyance of the sheriff, in pursuance of a sale under legal process, and the assignee never took any interest.

Judgment affirmed.