Behn & Foster v. Phillips

By the Court. Starnes, J. delivering the opinion. [1.] The judgment in this case must be controlled by the construction which is given to the Act of December 19th, 1822, declaring, that “where an appeal is entered from the first verdict, the property of the party against whom tbe verdict is rendered, shall not bo bound, except from the signing of the judgment on the appeal, except so far as to prevent the the alienation by the party of his, her or their property, between the signing of the first judgment and the signing of the judgment on the appeal.” Pending this appeal, the judgment debtor, A. Y. Hampton, executed certain mortgages of his property to other persons than the plaintiffs in error, (who were the plaintiffs in the case which was upon appeal,) and. the question is now made, whether or not such a mortgage was an alienation of his property by the debtor, within the meaning and purpose of the aforesaid Act. We may be aided, in the effort to discover the sense in which the word alienation w'as employed in the Act, by first ascertaining what was the mischief which the Act -was intended to remedy. It will be admitted, without cavil, that that mischief was the parting with that power over, or interest in the property by the defendant, which would operate to the prejudice or deprivation of the substantial interest of the j%idgment creditor. The Act was intended to secure and preserve, to the plaintiff, the interest in, or lion upon, the defendant’s property, which had been created by 'his verdict and judgment. And it was undoubtedly intended, that by it he should bo restrained from doing any thing, the effect of [468] which would be to vest in another, any such interest in or right over his property, as would effectually defeat the plaintiff’s right to have the same made subject to any judgment he might finally obtain on the appeal. Any thing, therefore, done by the defendant, which would operate to the deprivation of the judgment creditor’s interest,'would be, in our -opinion, an alienation within the sense of the Act. It is true that the Common Law definition -of alienation was different. That was a parting with property, the direct object of which was to deprive the heirs of the substantial interest in the estate. And it has been correctly argued by our brother Lyon, that a conveyance by mortgage, being in Georgia a mere security for the debt — a mere lien, is not an alienation in this sense. But if we are right in what we have already shown, the Legislature did not contemplate an alienation in this sense — was not looking to a parting with the property with reference to the interest of the heirs, but to that the judgment creditor. Inasmuch, then, as a mortgage,'unless it be held to be an alienation within the terms of the Act, as thus construed, .-could be easily and readily resorted to by the defendant, instead of a direct conveyance, and thus the mischief which the Act was intended to correct be left entirely unremedied, we think it becomes very plain that a mortgage is such an alienation, in our State, as was contemplated by the Legislature which passed this Statute. An effort has been made to analogizethis lien by mortgage, An Georgia, to other mere liens which are not conveyances. A debt contracted by the defendant, during the pendency of the appeal, has been taken as an example. If such a lien were coupled with a power which authorized the creditor, without any further act of the debtor, to enforce the same against the property of the debtor, and gave the judgment relation back to the time of the contract, then the analogy would serve. But such are not characteristics of a mere debt; and therefore, the reasoning is not accurate. Let the judgment be reversed.