Stallings v. Ivey

49 Ga. 274

• Court: Supreme Court of Georgia
• Decided: February 15, 1871
• Status: Published

Opinion

Trippe, Judge.

It is not necessary, under the decision we pronounce in this case, to determine the point whether the plaintiff in error could properly assert his claim of vendor’s lien against the land in the hands of Mrs. Connor, the widow and purchaser at administrator’s sale, on a bill filed by the administrator to marshal the assets of the estate. If the sale by the administrator displaced the lien of Stallings, the vendor, the judgment of the Court below granting the new trial was right. We hold that the sale by the administrator in this case, it being made under an order of the Court of Ordinary for the payment of debts, and the estate insolvent, discharged the land of the lien of the vendor for the purchase money.

In the case of Sims vs. Ferrill, 45 Georgia, 585, and Carhart et al. vs. Vann, 46 Georgia, 389, it was decided that where an estate is insolvent, and land is sold by the administrator or executor in the manner prescribed by law, such sale divests the lien of judgments obtained in the lifetime of the testator or intestate, and the creditor must look to the proceeds in the hands of the representative of the estate. The reasons assigned in Carhart vs. Vann for such a decision apply with equal force to the case of a vendor’s lien. There are certain classes of debts or claims against estates which rank, in priority, the vendor’s lien, as well as the lien of judgments. Funeral expenses, expenses of administration, a provision for the support of the family, (see Cole vs. Elfe, 23 Georgia, 235; 38 Georgia, 264; Acts of 1838 and 1850; section 2530 of the Code,) and taxes, are all to be paid before any other claim. In Clements vs. Bostwick et al., 38 Georgia, 1, it was held, that the fact of a vendor having a claim for unpaid purchase money, where title had vested in the husband, would not bar the widow’s right to dower in such land. Sections 1760 and 1761 of the Code allow a widow, with the assent of the executor or administrator, to elect a life estate in one-third of the proceeds of the sale of the land of her husband’s estate; or, with the approval of the Ordinary, an absolute estate in such an amount of money as the commissioners may assign, and which amount shall be paid in preference to all other claims, out of the proceeds of the land. It was decided in Webb vs. Robinson et al., 14 Georgia, 216, that creditors who become such without notice of a vendor’s lien are protected against such lien.

This array of debts or claims which have a priority over^ the vendor’s lien, as well as over judgment liens, shows the necessity, as was stated in the case of Carhart et al. vs. Vann, ut supra, in relation to the lien of judgments, “ of allowing the administrator or executor to divest vendor’s liens by sale of the decedent’s property to pay the debts of the estate. Otherwise, the practical effect would be to give the vendor’s lien priority over the classes hereinbefore named, for property would bring little or nothing at administrator’s sales, if liable to be afterward levied on and sold,” under a decree for the enforcement of the vendor’s lien.

Another serious difficulty would exist if a contrary rule were held — a difficulty that would bar the whole policy of the law as to administrator’s sales. A vendor’s lien can only be asserted in equity. Such a creditor would be compelled to wait twelve months from the time of granting administration to commence suit. Then a suit in equity would be necessary. A decree would be required and a sale had under that decree. In the meantime the representative of the estate could do nothing towards making a sale, however urgent the necessity might be to discharge those claims or debts which at last would be first paid, but which would be compelled to be brought into the suit in equity, so as to be protected by the decree of the Court in such a suit. Thus, in cases of debts of unquestioned priority, there would practically be a bill to marshal assets, with greatly increased expenses, and a delay seriously postponing those who so properly are the first objects of the law’s bounty and protecting care.

We can see no necessity for requiring such proceedings to be had, no principle demanding it, and no danger to the rights of a creditor having such a lien, under the decision we make. The administrator is a sworn officer or agent, acting under the judgment of a Court, with as well defined a line of duty pointed out by the law, as the sheriff or any other officer would have, and the rights of all parties in such cases could, with equal safety and a more speedy enjoyment, be secured in his hands.

Judgment affirmed.