Hollingsworth v. Dickey

24 Ga. 434

• Court: Supreme Court of Georgia
• Decided: January 15, 1858
• Status: Published

Opinion

Lumpkin, J.

By the Court. delivering the opinion.

In is conceded that the defendant in ejectment is entitled to hold the land sued for, provided the Sheriff’s sale is valid, through which his title is derived. The land was sold under a Justices Court fi. fa., to which three objections are made. 1st. That the judgment upon which it issued, is dormant. 2d. That there should have been a return of no personal property, by a Constable of Twiggs county, where the judgment was obtained, as well as by a Constable of Early county, where the land was situated and sold: and 3d. That the execution being transferred before the Act of 1829, was void.

[1.] The judgment upon which the execution was issued, bears date, 20lh of February, 1819 ; and the execution was issued the 13th of July, 1822. Of course the judgment in this case does not come under the dormant judgment Act of 1823. Being rendered prior to December, 1822, it is expressly excluded by the Act of 1823.

It is insisted therefore, that it is to be regulated by the common law, and must have been renewed after a year and a day. Without stopping to inquire whether it was dormant at common law; or the effect of the judiciary Act of 1799, ox the statute of 1811; the Act of 1812 declares in so many words, that “ no part of the judiciary laws of this State shall be so construed as to require, the renewal of any judgment, as heretofore practiced; or in any other manner whatsoever.” (Cobb, 496.) This objection then is clearly untenable, being-in the very teeth of the law.

[2.] Before they?, fa. was backed by the Justice of the-Peace of Early county, there is a return by a Constable of no-personal property to be found whereon to levy the fi.fa. And this entry is made by a different Constable from the one that levied the execution on the land in Early. Under this-state of facts, the presumption is, that the law was complied with; and that the return was made by a Constable of Twiggs county, where the judgment was obtained, and where the defendant resided.

For myself, at least, I would not have it understood, or inferred, that even'this is necessary, so far as the title of an innocent purchaser is concerned. The authority of the Constable to levy on land, is derived from the fact that there is no personal property out of which the execution can be collected. And if such be the fact, while his entry is a convenient mode of establishing it, I am not prepared to say, that I would not allow an innocent purchaser to protect his title by showing that such was true. And then on the other hand, with my present opinions, I would look to such entry as a protection to his title,no matter by what Constable made, nor when made. The act itself has been, in my humble belief, misconstrued from the beginning. It was passed for the benefit alone of the defendant in fi.fa.; to give him the right to compel the satisfaction of his debts, out of his perishable property, leaving him in the enjoyment of his homestead. Still, allowing him the privilege of pointing out his land, if sMcia was his choice. If he saw fit not to interfere by illegality, Irai to stand by and see his land sold, the title of the bona JSde purchaser should never have been disturbed. But these gtaiiois are not in the case, and I am determined to adhere to &mstmg decisions.

As to the transfer of the execution being a satisfaction of alee debt, such was not the doctrine, even of the common law. Em England, the assignee took an equitable interest, which .teiiHEld be enforced. Some Judge so decided, perhaps; and feuee the passage of the Act of 1820. An Act, like hun■«feeds of others in our State, passed, not to declare what the biwslmll be, but what it is, and always has been.

Judgment affirmed.