Parks v. Bailey

By the Court.

Lumpkin J.

delivering the opinion.

One fact alone in this case, is a sufficient reason why the injunction should not have been dissolved. The 3d section of the Act of 1847, provides, “that when any judgment has been, or shall be rendered in any of the Courts of this State, ■upon any note or other evidence of debt given for the purchase of land, where titles have not been made, but bond for titles given, it shall and may be lawful for the obligor in said bond to make and file and have recorded in the Clerk’s office of the Superior Court of the county, a good and sufficient deed of conveyance to the defendant for said land; and thereupon the same may be levied on and sold under said judgment as in other cases; provided, That the said judgment shall take lien upon the land prior to any other judgment or encumbrance against the defendant.” {Cobb 517, 518.)

The answer admits that the levy was made before the conveyance to the defendant was executed, much less recorded; and such being the fact, and Bailey himself having become the purchaser, the sale is illegal and void.

And we are not disposed to weaken by construction this salutary law. By having the deed to the defendant made and recorded before the levy could be made, thirty days at least must elapse before a sale could be effected; and thus purchasers would be inspired with confidence to bid for the property, from the publicity given to the fact, that the title was in the defendant.

The Legislature in 1850, passed a similar law in behalf of the representatives of deceased obligees, evincing a settled purpose and policy on their part, in relation to this subject.

Judgment reversed.