Carithers v. Venable

McCay, Judge. 1. We are inclined to the opinion that the charge of the judge, to the effect that if the judgment under which this land was sold, was even in part based on a debt contracted after the separation of Mr. Venable.and wife, the whole judgment would be without a lien, was not correct.. Indeed, just the opposite seems to us the proper rule, to-wit: that if any part [394] ©f the judgment was for a debt contracted before the separation, the lien of the judgment would be good. The proof distinctly divides the two debts, and we are unable to see why the debt, capable of becoming a lien, should lose its character by being carried into a judgment in company with a debt not capable of becoming a lien. Were they undisliuguishable there might be a good deal said in favor of this view, as it would be the plaintiff’s own folly if he mingled undistinguishably his good debt with a bad one. But, as we have said, the amount and character of each is distinctly shown by the proof. 2. It is going very far to construe the divorce laws so as to tie up the property of the husband from sale by him, or from debts contracted by him after the separation. This is, however, as we held in Venable vs. Craig, 44 Georgia, 437, the provision of the Code. But the husband is, by the same section of the Code, authorized to sell, bona fide, in payment of pre-existing debts: Code, 1721. Our opinion is, that a ■bona fide creditor may also sue his debt to judgment, and if he gets a lien before the property is set apart to the wife by' .-the final judgment, the lien is good — she takes subject to it. This, as .it seems to us, is fair, and in harmony with the provisions of the Code. Debts existing at the time of the separation have a high equity, and if they be reduced to judgment before the rights of the wife are fixed by a judgment, tljey ought, we think, under the general rules of our law, giving preference to the oldest judgment, to be first paid. To say that the lien of the wife retroaets to the date of the separation, so as to take away a right then existing in creditors, to sue and get a lien, is unjust to the creditor, who contracted with no such view. We are, therefore, of opinion that were this a good judgment its superior date would give it preference to the judgment in favor of the wife. 3, 4. Had the defendant stood upon his fi. fa. alone, we think he would have been entitled to a verdict. Prima fade, in this state, an execution from a legal court is authority to sell, and it is not necessary to produce the judgment. But the defendant did not so stand. True, in undertaking to [395] show his judgment, he acted under a ruling of the judge; but he has not made that ruling a ground of error, and if he had, would hardly reverse the judge, under the facts as they appear to exist. The papers seem all to be lost, and they were never recorded. It was, however, in proof that the suit was an attachment, and the fi. fa. produced, and which sold the property, is a general fi. fa. It fails to appear that the defendant was ever served with notice, as provided by section 3309 of the Code, or that he made defense, as provided by section 3228. An attachment is only good against the property levied on, and this fi. fa., if founded on an attachment only, is clearly void, since it was without notice. It appearing affirmatively by the proof that there was no regular suit, but only an attachment, a general fi. fa. is illegal and void. We do not agree that the issuing of a general fi. fa. implies notice, and that it is to be taken for granted there was notice. There are 'decisions to the effect that a general judgment by á court of general jurisdiction will be presumed, prima facie, to be founded on notice; but we know of no such rule in favor of a fi. fa., or other execution. The latter is not the act of a court. It is the mere ministerial act of the executive officer of the court. In most of the states it does not even carry with it the presumption that it is based on a judgment, much less that the judgment is founded on notice. We think, in this case, therefore, that as it was made affirmatively to appear that the case was originally an attachment, it was incumbent on the purchaser to show how the fi. fa. became a general one. This he utterly failed to do, and the judge was right in his instructions to the jury on this point. There being a total failure of the proof, the verdict of the jury was necessarily for the plaintiff. If there was no notice, the judgment was void, and the sale void. The purchaser took nothing. A purchaser is protected against an irregular judgment, but not under a judgment without notice to the defendant. The mere fact of the presence of an attorney of the defendant is not enough to supersede the necessity of notice; the defendant must make defense: See Ross vs. Edwards, 52 Georgia, [396] 24. An attorney might stand by and see that the case was made out, or he might attack the attachment. Under the law, therefore, we think the verdict right — necessary—under the proof, and the error of the judge as to the effect of the judgment, if a good one, immaterial. Judgment affirmed.