Sumter County v. Hanes, Jones & Cadbury Co.

Lumpkin, J. (After stating the foregoing facts.) 1. Hanes, Jones & Cadbury Company recovered judgment against one Christian in the city court of Americus, in 1911, and the execution based thereon was duly recorded on the execution docket of the court from which it issued, and on the general execution docket of the county, thus giving notice of the lien against the property subject to levy, then held by Christian or which might be acquired by him. While this execution was in force Christian purchased a mule and held it for some time. It thus became subject to the lien of the execution and to levy thereunder. Later Christian sold the mule to the County of Sumter, and it was used in working the roads of the county. It was contended, on behalf of the county, that the general rule is that property of a county in use for public purposes is not subject to sale under an execution, This is a correct rule when properly applied. Curry [126] v. Mayor and Aldermen of Savannah, 64 Ga. 290 (37 Am. R. 74); Neal-Millard Co. v. Trustees of Chatham Academy, 121 Ga. 208 (48 S. E. 978); Ætna Indemnity Co. v. Town of Comer, 136 Ga. 24 (70 S. E. 676). But in these and similar cases efforts were made to levy on property belonging to a public corporation and used or held for public purposes, under an execution obtained against such corporation, or to foreclose a lien against like property. In one case it was held that a county could not be garnished in order to subject by that means an amount due by it for necessary public work performed by a debtor. Morgan v. Rust, 100 Ga. 346 (28 S. E. 419). Here, however, there was no effort to levy upon or enforce a lien against property to which the county had a clear and unincumbered title. When the county bought the mule, a lien had already attached to it, and the county purchased it subject to such lien. It could not destroy a lien arising by virtue of an execution against a former owner of the property, by purchasing it from him. Suppose that the former owner did not have a clear title, could the county make the title good by buying the property and relying on being a political division of the State? Suppose that the former owner had given a mortgage upon the mule, could the county have destroyed the validity of this contract lien by purchasing the property from the mortgagor? To ask these questions is to answer them. If the county could not do these things, no more could it shake off a lien which had attached to the pro]:>erty by operation of law in the hands of a former owner, by purchasing it from him. The purchaser took the property subject to the lien, and the rule above mentioned has no application to such a situation. 2. The knowledge of an attorney for the plaintiff in execution that the mule was sold to the county,- obtained after the delivery of the mule, and that he did not take any steps to enforce the execution for some little time thereafter, when he informed the county authorities that he considered the mule subject to levy and sale, and demanded, without avail, that they pay the execution, did not affect the right to have the mule levied upon and brought to sale. Judgment affirmed. All the Justices concur, except Fish, C. J., absent.