Black v. Gate City Coffin Co.

41 S.E. 259, 115 Ga. 15, 1902 Ga. LEXIS 294

• Court: Supreme Court of Georgia
• Decided: March 13, 1902
• Status: Published

Opinion

Lumpkin, P. J.

Under section 3586 of the Code of 1882, property held under a bond for titles with a portion of the purchase-money paid could be lawfully levied upon and sold under a judgment against the holder of such bond. This section also provided for a distribution of the money arising from such a sale. The statutory scheme for thus reaching an equitable interest in realty held by a defendant in execution was, however, superseded by the act approved December 17, 1894, entitled “An act to provide for the levy and sale of property where the defendant in fi. fa. has an interest therein but does not hold the legal title thereto, and to provide for the distribution of the proceeds arising from such sale, and for other purposes.” See Acts of 1894, p. 100. The provisions of this act are now embraced in the Civil Code, §§ 5432, 5433. Accordingly, this court ruled as appears in the case cited in the headnote. To the same effect see, also, Jordan v. Central City Loan & Trust Co., 108 Ga. 495. The case now before us is» upon its facts, absolutely controlled by the law as announced in the two cases just mentioned; and the judgment of the trial court, not being in accord therewith, must be set aside.

The point now decided was not involved in the case of Georgia State B. & L. Association v. Faison, 114 Ga. 655, but some of the expressions in the opinion in that case seem to indicate that it was. The same, in so far' as they conflict with what is now ruled, should be treated as obiter.

Judgment reversed.

All the Justices concurring, except Little, J., absent.