Akin v. Freeman

McCay, Judge,

concurring.

As to the dormancy of the judgment, I have stated my views fully in Battle vs. Shivers, 39 Georgia, 405, and I am satisfied with what I then said. It seems to me that all this effort to pervert the words “ statute of limitations ” in the Act of 1860, so as to make them include the Dormant Judgment Act, is an after-thought to which men’s minds come in their efforts to save judgments from that neglect which, du*62ring the war, attended all business. Men have suffered and do suffer, from that neglect in other matters, and if they suffer also because of their neglect to attend to the preservation of their liens, I feel no disposition to aid them to the injury of purchasers and younger liens. As I said in Battle vs. Shivers, the Dormant Judgment Act is an Act, the intent of which is to require notice of a judgment lien to be given upon the public records, once in seven years, that the plaintiff still claims his judgment to be a subsisting one. And there is nothing in the Act of 1860, nor in the circumstances of the wai’, to excuse a man from giving a notice, if the effect of his failure has been to mislead purchasers and allow younger liens to vest. True, it is a misfortune to the plaintiff, but it is better that he should suffer than that others, who have acted from ignorance, caused by his fault, should make way for him. The Act of 1856, in so far as it declares the judgment presumed to be satisfied, so that it cannot be sued upon or revived after the seven years, (if the Act is to have that construction, which I am not sure of,) may be a statute of limitations, and may have been suspended. But if this be its meaning, its suspension, in my judgment, leaves the Act of 1823 in full force. Whilst the Act of 1856 was in operation, it protected purchasers and junior liens without any necessity of a resort to the Act of 1823. If the judgment was dead, satisfied as to the defendant, purchasers and younger liens were protected under the protection of the defendant. But when by this suspension there ceased to be any protection to the defendant, the Act of 1823, protecting purchasers and younger liens, (which was not a statute of limitations, but, as I contend, was an Act the object of which was to regulate the rights of third persons against the property of the debtor,) was left in full force. Our law now requires mortgages to be recorded in three months, to make them notice to third persons. If we were to adopt a law making them void if not recorded, this, while it was of force, would protect purchasers as well as mortgagors, and the present law would be of no practical use; but if the new law should be suspended, the present law *63would still be of force and be of practical operation, for the simple reason that the present law has a special purpose, to-wit: to give notice. The new law would have another purpose, to-wit: to affect the mortgager, and the suspension of the new law would leave the old standing in full operation, not because it revived the old law, for that was not repealed, or even superseded by the new, but because the removal of the new protection left the old to operate.

On the other point in this record, I adhere to the decision of Chapman vs. Aiken. I did not in that case give my reasons for concurring. The great mistake that is made by those who treat this Act and the Dormant Judgment Act as statutes of limitation is, they forget that the questions are not between the plaintiff and defendant, but between the plaintiff and third persons, and that both of these Acts have for their object the protection of purchasers. By our law, a judgment, from the date of its rendition, is a lien on all the property of the defendant wherever it may be found in the State. It has its iron heel so surely planted that whoever, within the limits of the State, buys land of the defendant, is charged with notice of the judgment and buys subject to it, with the single condition that this lien, if the purchaser goes into possession, ceases in four yearg. Statutes of limitation are always based upon the idea that the party barred by them has delayed action so long that the presumption arises that his claim is satisfied, or that by the death or disappearances of witnesses, or loss of papers, tire defendant has lost his evidence. Hence, if the plaintiff be under disability, as nonage, coverture, imprisonment, etc., the statutes almost uniformly except him from their operation, or if the defendant has acknowledged the debt, or recognized the title, the statutes only run from the acknowledgment.

This Act is based on different principles. The plaintiff’s judgment is matter of record — when satisfied, the record shows it. It may lose its lien, though unsatisfied. The ground of the protection intended for the purchaser is, that the plaintiff is in fault for having failed to make his money out of the de*64fendant. Ordinarily the defendant has other property. A man rarely sells all he has. And the language of the law is not that “ your debt is satisfied,” but that you have failed, when you had it in your power, to make your money out of the defendant. You have stood by four years, seen this purchaser in possession, allowed him, perhaps to improve this property, and having done so, you are rightly barred. But there is, I think, a stronger view of it than this. The purchaser is bound to take notice of-the judgment. He cannot plead ignorance. The judgment is a record, and the world must notice it. Every man, therefore, who buys with the lien, has an inevitable burden on his title for four years. He takes the risk that the defendant will pay, or that the plaintiff will make the money out of other property, and he has generally a warranty from his vendor that this will occur. But he buys with this distinct understanding that at any time within four years his land may be levied on, and with the additional understanding that if four years elapse, his land shall be free. It makes no difference whether the plaintiff be under disability or not, nor does it make any difference if, on the very last day of the four years, the lien be recognized. Indeed, for four years the lieu is inevitable, recognized or not. The purchaser might recognize it, and it w«uld be no stronger. He might repudiate it, and it would be no weaker. But on the very day after the four years is up, the lien is gone. It cannot be recognized after that, even by a written acknowledgment that he bought the land after the date of'the judgment, and that the judgment is still unpaid.

For these reasons I think this Act is not a statute of limitations, but that its scope and meaning is to say that the lien exists against defendant’s land going into the hands of purchasers, upon condition that the lien is asserted in four years, and that the purchaser buys the land subject to the lien, provided it is enforced in four years. It stands on precisely the same footing as did the right of action to the representative of Lacy in the case, decided at this term, of The Selma, Rome and Dalton Railroad Company vs. Lacy.

*65There the Code of Alabama had provided that the representative of one who had been tortiously killed, might, within twelve months, maintain an action for damages against the wrongdoer. A suit was brought in this State on the statute. By the general rule of law the statute of limitations of the place of trial regulates the right of the parties to sue. Our statute of limitations for torts is two years. But this Court unanimously held that the suit must be brought within twelve months, because it was upon that condition that the right of action was given by the law of Alabama, The Chief Justice even holding that the declaration (which was seriously defective when brought, so that no right of action was set forth) could not even be amended after twelve months, and this, though by our statute of limitations, the plaintiff has two years 'to sue for such a tort.

But under the facts of this case, as they appear without question in the record, I am of the opinion, with my brother Trippe, that the defendant in this fi. fa. never had such an interest in this land as was the subject of levy and sale, as the plaintiff has undertaken to levy and sell it. By the law of England, an imperfect equity could not be levied upon by a common law fi. fa. The law only recognized legal titles, or such perfect equities as the statute of frauds made the subject of levy and sale, or the statute of uses executed. Hence, even an equity of redemption in the mortgagor was not subject to an execution at law. And it was a general rule, that where the interest of the defendant was one cognizable only in a Court of equity, a judgment at law was not a lien upon it, and could not sell it: 2 Lewin on Trusts, 665; see, also, Doe vs. Green-hill, 4 B. & A., 684; Harris vs. Baker, 4 Bingham, 96; Haynes vs. Baker, 5 Ohio, 253; Tyree vs. Williams, 3 Bibb, 366; January vs. Bradford, 4 Bibb, 566. Nor did our law, prior to the Code, make any change in this rule in principle. A mortgage, it is true, was considered even at law only as a security, and not a title, so that the interest of the mortgagor was treated as a legal interest, and not simply an equitable one, so that it became, logically, subject to levy and sale under a *66judgment against the mortgagor. But this Court has on several occasions ruled that an equitable interest was not bound by a judgment at law, unless that interest was what is called a perfect equity. In the latter case it was made subject by the statute of frauds, even in England, and as a matter of course it became so here, by the statute adopting the statute and common law of England: Pitts vs. Bullard, 3 Georgia, 5. In Hammock vs. Myrick, 14 Georgia, 77, this Court held that the interest of the drawer of land, before the grant issued, is not subject to levy and sale.

In Dandle vs. Neal, 10 Georgia, 148, the land had been sold as the property of Whitehurst and bid off by Pou. Subsequently Pou agreed with Whitehurst that he might have back the land by paying him back the amount of his purchase, $1,200 00. Whitehurst paid about $900 00. They then' made a new agreement, by which, in effect, Pou sold the land to Geddings, the parties revoking the first contract with Whitehurst. This Court held-the property not subject to an execution against Whitehurst existing at the time the $900 00 was paid, and the Court say, page 157, “By the leading case (Pitts and Bullard,) the contract must be executed, nothing must remain to be done, before the purchaser can acquire a title, so as to make it liable at law to an execution. He must pay down the entire consideration. At any time before this is done, the parties may come together and annul or vary their contract.” The case of Ware vs. Jackson, 19 Georgia, 452, and McGregor vs. Mathis, 32 Georgia, 417, go on this same idea. In the former case, land bargained by A to B before the judgment, A retaining the title and giving B a bond for titles, was held subject to a judgment against A, obtained before all the purchase money was paid. In 32 Georgia, 417, the land was held not subject to a judgment against the vendor who retained the title, but who transferred without recourse the vendee’s note. In all these cases the question turned on who had the legal title. The general rule being that the land is subject to a judgment against the holder of the legal paper title, but if that be a mere naked title, and the beneficial in*67terest be entirely in another, then it is subject to an execution against that action. Such, as I understand it, is the settled rule as to the lien of a judgment at law upon an equitable interest in land. Under the Code, the vendor may, if the purchase money be unpaid, file a deed in the clerk’s office and then levy: Irwin’s Code, 3604. If one who is not the vendor desires to subject to his judgment land partly paid for, he must levy on the land, the whole title, and give the maker of the bond notice. The whole title is sold, the vendor getting the preference for his unpaid purchase money: Irwin’s Code, section 3528. But both these provisions recognize the position now assumed. The sale in both cases is' of the legal title. Section 3228 is a substitute for the right the judgment creditor had to go into equity, pay the balance of the purchase money and have the land sold.

Under this view of the law, it is my judgment that there never has been anything in the defendant in execution in this land subject to levy and sale. When he sold to the claimant, he had only a bond for titles, and had paid none of the purchase money. True, he had improved the property, and equity would have authorized the plaintiff to file a bill, tender Shorter his money and sell the land. But at law, the defendant in the judgment had no leviable interest. He sold this interest to the claimant. It was the claimant who paid Shorter, and at the time of the sale it was agreed that the claimant should have a transfer of Shorter’s bond. When Shorter was paid, he held the legal title. For whom ? According to the testimony of claimant, for him. But even supposing that claimant took defendant’s bond for titles, and relied on that, Shorter would have the legal title in trust for claimant and defendant. The defendant would not even then have a perfect equity, for the claimant’s equity had come in before Shorter was paid.

In any view of it, as it seems to me, the right of defendant was not covered by the lien of the judgment. Certainly it is not so clearly so as to justify the pushing of its technical, rigid lien, so as to defeat the bona fide rights of the claimant. *68About the facts in the case there is no dispute, and if the judgment were to be reversed, on the error of the Court, the verdict must be the same.