Stewart v. Berry

Bleckley, Chief Justice. 1. The first question' is, assuming that part of the purchase money was paid, whether a rescission of the contract after the judgment was rendered, but before the execution was levied, would prevent the land from being subject to be.seized and sold as the property of the purchaser. The code, §8580,is in these words: “All judgments obtained in the superior, justices’ or other courts of this State shall be of equal dignity, and shall bind all the property of the defendant, both real and personal, from the date of such judgment, except as otherwise provided in this code.” Section 3586 provides for the specific case of part payment of the purchase money where the holding is under a bond for titles. The section declares : “When a person holds property under a bond for titles, and the purchase money has been partially paid, the same may be levied on under judgments against such person, and the entire interest stipulated in the bond shall be sold. The proceeds of the sale shall be appropriated, first to the payment of the balance of the purchase money, and the remainder to the judgment liens according to date. In all such cases, notice of the levy shall be given by the levying officer to the holder of the bond for titles, and also to the maker of the bond, and in case of death, to his legal representatives.” In Dowdell v. Neal, 10 Ga. 148, there was no bond for titles, and so that case is not within the letter of the statute. In Akin v. Freeman, 49 Ga. 52, the purchaser transferred the bond before making any payment. Wilkerson v. Burr, 10 Ga. 117, and Estes v. Ivey, 53 Ga. 52, recognize in some degree the liability of land partially paid for to be sold as the property of the purchaser under judgments against him. The case, however, nearest in point is Rawson v. Coffin, 55 Ga. 348. We think it makes no difference that the vendor and maker of the bond took hack the land by rescission after [182] the judgment lien attached. The vendor, by the rescission, simply took the position of a purchaser from his vendee. Kelley v. Bliss (Wis.), 21 N. W. Rep. 609. The ruling in Rawson v. Coffin, supra, is in line with the general law on the subject elsewhere. Freeman on Judgments, §848; Auwerter v. Mathiot, 9 Sgt. & Rawle, 397; Russell’s Appeal, 15 Pa. St. 319 ; Hamilton v. National Bank (La.), 3 So. Rep. 126; Gorham v. Farson (Ill.), 10 N. E. Rep. 1. It was contended in the argument that the statute embraced in §3586 of the code, above quoted, is a mere power, and does not contemplate any lien as existing against the land by virtue of the judgment. This view would make seizure necessary to prevent the holder of the bond from making a transfer free from the judgment. "We think this is not a correct view of the statute, and certainly it cannot be harmonized with the decision which was made in Rawson v. Coffin. If that case was well decided, and we think it was, the present case ought to follow it. The act of October, 1885, renders land held under bond for titles and partly paid for subject to dower in behalf of the purchaser’s widow. Acts 1884-5, p. 92. 2. There was evidence indicating that some of the purchase money had been paid before the rescission took place. The court ought to have admitted the further evidence of the value of the land at the time the contract of purchase was made, for value, though indirect evidence, is some evidence of price. Mitchell v. Addison, 20 Ga. 53. The value of the land for rent would also throw light upon the question of price. 3. The fact that the defendant in ft. fa. was dead, and the further fact that he had ceased in his lifetime to be the holder of the bond for titles, would excuse the plaintifi' from serving him with notice of the levy. The court erred both in excluding the evidence of value, and in its final judgment holding the land not subject. Judgment reversed.