Akin v. Freeman

49 Ga. 51

• Court: Supreme Court of Georgia
• Decided: January 15, 1872
• Status: Published

Opinions

Trippe, Judge.

The question, whether the different Acts suspending the statutes of limitation operated to suspend the statutory provisions in reference to judgments becoming satisfied or dorrnant, by having no entry upon them within seven years, or having their lien discharged, so far as relates to property sold by the defendant, when the purchaser has been in possession of land so sold for four years, has been for several years exhaustively argued before this Court, and in the decisions heretofore made. I do not propose to be prolix, or to wrong the professional readet, in giving the reasons for my concurrence in the judgment pronounced on these points at this term.

There is not a more universally fixed1 and accepted rule than that, in the construction of statutes, the intention of the Legislature, when discovered, shall prevail. The ninth clause of the fourth section of the Code, in enacting rules for the construction of statutes, says: “ In all interpretations the Courts shall look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil and the remedy: See 2 Cranch, 33 ; Ibid., 386; 1 Black’s Reports, 61; 4 Dallas, 14.

Keeping this principle in view, let us look into the first Act, passed November 30th, 1860, touching the question of suspension. The fourth section saysIt shall not be lawful for any plaintiff in/, fa., his agent or attorney, to have the same levied upon the property of any inhabitant or corporation of this State, until the first of December, 1861;” and after making several provisions to suspend sales in cases of levies then pending, and allowing levies where defendants were removing, etc., it provides that the statutes of limitation shnll cease to run, etc., during a certain period, to-wit: the suspension of the banks. It will be observed that the restraining provisions of this Act applies exclusively to the enforcement of judgments by levy, and placed no barrier or prohibition whatever against bringing suits or actions by creditors or plaintiffs.

What reason could there be to enact a law preventing executions from being levied, which would become dormant if an entry were not made upon them within seven years by the officer authorized to execute and return the same, and to make no provision against such a result, hut to provide simply that there should be a suspension of any Act of limitation upon the right of a creditor to sue ? There was nothing in the Act affecting the right to bring an action — nothing denying that; and a creditor with a claim not in judgment was in no way touched by the Act. The judgment creditor was. barred from levying, and thereby made to lose or risk his debt for his failure so to do, unless some relief was granted against the other law on the statute book, thus endangering his right. One class of creditors, not within the scope of the Act or in danger of being hurt by it, would thus have all bars —all limitations against them removed, whilst the other class, who had new disabilities imposed upon them, would be denied, not only the benefit or relief granted to the first, but forced, seriously if not fatally, to hazard their right of final collection by submission to the law itself. If the creditor could have managed to have had an “entry” made, so as to prevent his becoming disabled to enforce his judgment at all, under the eighth section of the Act of 1856, then in force, I have never been able to see by what means he could preserve his lien on land sold by his debtor, provided the Act continued for four years, and the purchaser remained in possession during that time. The Act was, in fact, by repeated legislation, continued in force for more than four years; and if the twenty-ninth section of the Act of 1856 was not suspended, then we would have had the spectacle of a Legislature forbidding a creditor to move in the collection of his debt, and, at the same time, keeping in operation a law whereby he should lose his lien on whatever real property his debtor might sell. Such a construction would not only make the Legislature, in inserting the suspending clause in the Act of November 30th, 1860, guilty of a foolish discrimination in favor of those who had no need of it, but also guilty of a great wrong and outrage against those to whom the relief was denied, and who were the only persons who were legislated into a position to demand it. Reason and a sense of justice would require a Legislature, whenever it suspended the power of a citizen to assert his rights, also, at the same time, to suspend any and every law that imposed disabilities upon him for his failure to assert them; and Courts would be quick to construe in his behalf any words in such enactments, that, by any reasonable fairness, could admit of a construction that would prevent such gross injustice.

In this view could it be called a violation of any fair rule of construction, to say that the Legislature intends to, and did, by this clause of the Act of 1860, suspend the eighth and twenty-ninth sections of the Act of March, 1856, even if the eighth section had been simply a provision as to judgments becoming dormant, and not a statute of limitation as it was held to be in Chambliss vs. Phelps, 39 Georgia, 386; Battle vs. Shivers, Ibid., 405 ; Horton vs. Clarke, 40 Georgia, 412?

Such Acts as the Dormant Judgment Act of 1822-3, have been called by the Courts and the Legislature, Acts of limitation. In 7 Georgia, 166, this Court, in giving a construction to that Act, said: “We are of opinion that there is nothing to prevent the Legislature from fixing a time within which an existing judgment shall be enforced, as well as to pass any other Act of limitation.” Words of a similar import were used in 2 Kelly, 255, in reference to the same Act of 1822. So in Charlton’s Reports, 330, 331; and there are several other instances where Courts have so denominated such Acts. The Legislature in the third section of the Act of 1866, commonly known as the “stay law,” in referring to the laws in relation to limiting liens, expressly call them “statutes of limitation.” If, then, these words have been so often used by the Courts in that sense, and by the Legislature in the series of Acts on the same subject, have been in terms so directly applied, and the spirit and justice of this Act of 1860 so strongly call for a construction of the same words therein used, in order to prevent great wrong and injustice, and I may say to protect the Legislature itself against a gross absurdity in the meaning of its enactments, we are furnished with sufficient, if not overwhelming reason, whilst looking for the intention of the law-maker in passing the Act of 1860, and “keeping in view the old law, the evil and the remedy,” to hold that where the Act in one clause prevented a judgment from being enforced, and in the next clause suspended the “Acts of limitation,” it meant to suspend any and all Acts which imposed penalties, forfeitures, losses or any hurt or damage whatever that might otherwise result from obedience to that Act. I will add that, in my individual opinion, no one for a long time entertained a doubt as to this being the proper meaning of that Act, and that the universal opinion of lawyer and layman was that, under its proMsions, no judgment creditor ran any risk of losing his lien, or of his judgment becoming barred or dormant.

I have referred to the words used in the Act of 1866, styling these Acts “statutes of limitations,” for the purpose of showing how these have been applied by the Legislature, as well as by the Courts. It is denied that these Acts were suspended by the Act of 1866, because as it only suspended “all statutes of limitation, relating to the liens alfected by the Act,” and as the whole “stay law” feature of it was declared unconstitutional, therefore no lien was affected by it, and consequently no statute was suspended. Be that as it may, the force of the reference is just'as strong. The Legislature may not have the power to enact a stay law, but yet, the sense in which it used the words “statutes of limitations,” is as clear as it would have been had the Act been declared in its main provisions valid. It may be, also, pertinent to add, that although the portion of the Act of 1866 preventing liens, etc., may have been unconstitutional under the principle of the decision in the case involving the Act of 1866, yet the suspension clause in it was independent of the stay law feature, and had no words limiting or confining its meaning to, or making it contingent on other portions of the Act, which were of no effect. The Legislature intended to prevent executions from being levied, and it said so in plain unmistakable -terms. It of course thought the Act constitutional, and that it would be enforced. Its enforcement without further provisions, would have worked wrong to judgment creditors. To prevent this, the Legislature inserted an independent clause, suspending the statutes of limitations. The intention of the Legislature in this last provision is as plain as if no constitutional question could arise as to the former part of the Act. Moreover the people, the subjects of the law, almost with one accord, accepted the Act, the whole Act, with all its parts, and submitted to it, believing that whether it Avas or was not constitutional, its observance would not work a denial of all rights, for there was a saving clause protecting them against injury from lapse of time. And thus the Avhole force of the reason of the rule as to the intention of the Legislature, the spirit and reason of the statute, “the old law, the evil, and the remedy,” remains practically unimpaired.

I have referred to the decisions in 39 Georgia, 386, 405, and 40 Georgia, 412, where it was held that the eighth section of the Act of 1856 was a statute of limitation, and was suspended by the Act of 1860, and the suspension continued by the subsequent suspension Acts. It is there said that the suspension of this section operates to revive the next preceding Act which regulated the subject, to-wit: the Act of 1822-3. I have already said, in substance, that had the eighth section of the Act of 1856 been in the terms of the Act thus said to be revived, it would none the less have been suspended by the Act of 1860 and similar subsequent Acts. It would have been but a poor boon to have barred the creditor of his right to levy, and to have told him that, in the meantime, he should be compensated by being relieved from the statute Avhich would hold his judgment paid and satisfied, and substituting therefor another statute which would only make it dormant— that a fatal poison should not be administered which would produce death to the debt, but only an opiate to effect a sleep which Avould kill its lien. Such could not have been the intention of the Legislature.

If the suspending clause in the Act of 1860 had such an effect, then, as the Act of 1856, known as Cone’s Act, was a codifying Act of all the statutes of limitation, and, in some instances, changed the rule as to time, and AAras in force on the 30th of November, 1860, Avould not its suspension have revived the preceding statute of limitation, and thus there would never have been any suspension whatever, at least, by virtue of the Act of 1860, and the subsequent Acts continuing it in force? On the 14th of December, 1861, a general Act was passed suspending “ the statutes of limitations then (now) in force during the war.” This was independent of the Act re-enacting the one of 1860.

Upon the view of the whole question, considering the situation of the people at the time, the policy of the Legislature as indicated by these statutes, the special provisions and working of the Acts, and their actual effects upon debtor and creditor, it was clearly intended that, in the midst of threatened and actual war and revolution, debtors should not only not be harassed by levies and sales of their property, but that creditors should in no way suffer deprivation or loss beyond the postponement of their right for the -immediate enforcement of their claims.

The Act of 1860 was, by several subsequent Acts, continued in force until the end of the war, and the levy having been made in 1867, the judgment cannot “be held and taken as fully satisfied and paid,” or dormant, or that four years’ possession of land by a purchaser during that time discharged it of the lien of such judgment.

But the next question is, did the lien of the judgment ever attach to this land? Did Rice, the defendant, ever have any interest in the land that could be levied on ? He bought two parcels of land, one from Shorter and one from Alexander, taking bond for titles without paying any purchase money. There-was, thus far, certainly no interest in Rice, subject to levy and sale. Whilst in this situation he sold both parcels to Freeman. The land bought from Shorter is the property levied on. Rice states in his testimony that he transferred Shorter’s bond for titles to Freeman. Freeman says it was the contract that he was to do so, but not having the bond of Shorter’s at the time, Rice’s own bond was given as a temporary arrangement. Freeman paid Rice a portion of the purchase money, and afterwards enough to pay off the whole purchase money due Shorter, which was done. When Shorter was thus paid and the right existed as against him to demand a deed, Rice neither held the land under bond for titles, nor was he in possession of the land, nor did he hold a bond for titles, for Freeman had the right to that, and the right to a deed from Shorter. Any equity that accrued by virtue of the payment to Shorter, accrued to Freeman, and previous to the contract between Rice and Freeman, Rice only had a naked equity which was never the subject of levy and sale. Whatever further equity arose as against Shorter or in favor of any one, was on account of the payment with Freeman’s money and vested in him.

It is true, a judgment is a lien on all the property of a defendant. But it has never been held that it can be enforced by a levy and sale of land held under a bond for titles, where none of the purchase money is paid. If the purchaser thus holding has paid all the purchase money, then he has a perfect equity liable as property to which he has a legal title. The 3528th section of the Code provides, that “where 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 persons, and the entire interest stipulated in the bond shall be sold.” It then proceeds to provide for the protection of the vendor as to his claim for the unpaid purchase money. But in this case, as already stated, when the purchase money was paid to Shorter, Rice was not a holder of the property or bond for titles in any legal or equitable sense. In the case of Ware vs. Jackson, 19 Georgia, 452, the facts were, that in January, 1845, Baker sold to Iverson and gave bond for titles on the payment of the purchase money. In November, 1846, Ware recovered judgment against Baker. In March, 1848, Baker made a deed to Iverson, having received the purchase money. Iverson afterwards sold to Jackson. "Ware levied his judgment, and Jackson interposed a claim. The Court below held the land was not subject, whilst a majority of this Court reversed the judgment of the Court below, and held on strictly legal grounds that the land was subject. Yet Judge Lumpkin concurred with “doubt and misgiving,” and Judge Benning dissented, concurring with the Court below, that the lien of the judgment never attached to the land. In that case there was the legal title in the defendant in judgment, when it was obtained, and the purchase money not paid, and yet the Judge below who tried the case did not think the land was subject — one Judge of this Court concurring with him, and another hesitatingly deciding to the contraiy. I refer to this case mainly for the purpose of calling attention to the position taken in the decision, and the force that was given in the argument to the rule that equity looked upon things agreed to be done as actually performed, and to make an application of that principle to the contract between Rice and Freeman at the time it was made, that Freeman was to have the bond of Shorter. But I will leave the further discussion of this point to my brother McCay, who concurs with me on this branch of the case. I cannot see, if this case were sent back, how the verdict could be contrary to what it is, although the Court below erred on the other questions involved, for I am satisfied the land is not subject in any view that may be taken of the case, unless there was fraud in the transaction, which is not pretended. If the verdict is right upon all the facts and law of the case, a new trial will not be granted, although the charge of the Court may be erroneous upon some of the points involved: 41 Georgia, 675; 42 Ibid., 244, 587; 33 Ibid., 207, 173.

Judgment affirmed.