Lane v. Bradfield

140 S.E. 417, 37 Ga. App. 395, 1927 Ga. App. LEXIS 717

• Court: Court of Appeals of Georgia
• Decided: November 18, 1927
• Docket: 17894
• Status: Published

Opinions

Per Cubiam.

1. It is well settled by the decisions both of this court and of the Supreme Court that “some overt act of constructive seizure is essential to the validity of the levy of an attachment upon real estate.” Groover v. Melton, 2 Ga. App. 269 (58 S. E. 488), and eit. See also United Provisions Corp. v. Board of Missions, 33 Ga. App. 9 (124 S. E. 820). It is true that a vested remainder in realty is subject to levy under a common law execution (Shipp v. Gibbs, 88 Ga. 184, 14 S. E. 196; Perkins v. Farmers Bank of Doerun, 156 Ga. 841, 120 S. E. 528); and assuming, without deciding, that it may also be subject to attachment if capable of such a seizure as to affect the remainderman with notice, yet since the life-tenant is in possession, and the possession, use, and enjoyment of the property by the remainderman is postponed until the death of the life-tenant, no act of the levying officer in seizing and taking possession of the property can amount to notice to the remainderman. New England Mortgage Co. v. Watson, 99 Ga. 733 (3) (27 S. E. 160); Baker v. Aultman, 107 Ga. 339 (33 S. E. 423, 73 Am. St. R. 132). It follows that an entry of levy upon an attachment reciting such a seizure and taking possession should not be treated as a valid seizure as against a remainder-man.

Decided November 18, 1927.

2. Irrespective of whether written notice to the remainderman or other person as his agent could supply the deficiency in such seizure and the entry thereof, it is. not enough to show that a letter containing the notice was sent to the defendant remainderman by the levying officer by registered mail and was receipted for by a third person purporting to act for the defendant but whose authority to do so does not appear (Wilber Stock Food Co. v. Wesley, 14 Ga. App. 179, 80 S. E. 677); and a second like notice sent by the attorney for the plaintiff and receipted for by the defendant in person, subsequently to the return term of the attachment, would also be ineffectual as affording legal notice of the attachment. The notice must be at least official (Baker v. Auliman, supra), and must be made prior to the return term of the levy. Albright-Pryor Co. v. Pacific Selling Co., 126 Ga. 498 (6) (55 S. E. 251, 115 Am. St. R. 108).

3. Nor is the life-tenant in possession the agent of the remainderman for the purpose of receiving written notice of the levy of the attachment. Pool v. Morris, 29 Ga. 374 (74 Am. D. 68).

4. It follows that the court erred in overruling the defendant’s motion to dismiss the attachment.

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur. Bell, J., dissents. Lovejoy & Mayer, for plaintiff in error. E. T. Moon, B. IF. Marlin, contra.