80 Ga. 397 | Ga. | 1888
It appears from the record in this case that J.' W.. McLendon, executor, etc. had rented a farm in the county of Webster to one J. W. Foreman, of that county, for the year 1882; and that Foreman took two of the bales of cotton grown on the farm to the town of Dawson, in Terrell county, and sold them to A. J. Carver. Shortly after Carver purchased the cotton, McLendon sued out a distress warrant, claiming a special landlord’s lien, and had it levied upon the cotton. Carver filed a claim to the cotton, and gave bond and security for its forthcoming; which claim was returned by the sheriff, with the distress warrant, to the superior court of Terrell county. When the case was called in that court, it was, on motion, ordered to be withdrawn, and was returned to the superior court of Webster county, where Foreman, the tenant, resided. The claim was finally dismissed by the judge of the superior court of Webster county, for want of prosecution. Carver in the meantime had disposed of the cotton. McLendon commenced his suit against Carver and his security on the forcoming bond. On the trial of the case, under the charge of the court, the jury returned a verdict in favor of Carver. A motion for a new trial was made, and was overruled, and the plaintiff excepted.
The only ground taken in the motion for a new trial which it is necessary for us to notice, is the 4th, which is as follows : “ Because the court erred in charging the jury as follows: that if they believed from the evidence that Carver bought the cotton in good faith before the levy, their verdict should be for the defendant.” So the question for us to determine is, whether the special lien of the
While there has been no direct decision upon this point by this court, we think the question has been decided in several cases as to other liens. In the case of Rose & Co. vs. Gray, 40 Ga. 156, the facts show that Gray made and delivered to Burnett & Brother a marble counter-top. Burnett & Brother sold and delivered it to Rose & Co., who purchased it without notice of the lien of Gray. Gray foreclosed his lien upon the counter-top; and this court held that the lien of the marble cutter could not be enforced against third persons who were bona fide purchasers without notice. In the case of Frazer vs. Jackson, 46 Ga. 621, this court held that a bona fide purchaser of the absolute title to personal property without notice of any unforeclosed statutory lien upon it, takes the same divested of any such lien; and the case of Rose & co. vs. Gray, supra, is eited in support of the decision-.
In the case of Clark & Cole vs. Dobbins, 52 Ga. 656, Clark & Cole, who were warehousemen, had made certain advances, on account, to the tenant of Dobbins. Dobbins sued out a distress warrant against the tenant, and levied it on five bales of cotton in the possession of Clark & Cole. Brewer & Son also foreclosed a merchant’s lien which the
In the case of Beall vs. Butler, 54 Ga. 43, it was held that the lien of a laborer on the property of his employer will not prevail against a purchaser who buys before foreclosure of the lien and without notice; the court citing the cases above referred to, in 40, 46 and 52 Ga., the principle of which they say applies to the case of a laborer’s lien.
We have examined the decisions of other courts, and find that the weight of authority is in consonance with the view we take of this case. Besides all this, the legislature has provided a remedy for the landlord in cases like this, by making it a misdemeanor for a tenant to sell property on which there is alien for rent, the punishment prescribed being a fine in double the sum or debt which the lien was given to secure, one-half of said fine being given to the landlord, thus paying his debt. Code, §§4600, 4600(a), 4601.
We therefore affirm the judgment of the court below, holding that a bona fide purchaser without notice will be protected against the lien, general or special,of the landlord.
Judgment affirmed.