Page v. Jones

Summary

The Georgia Supreme Court affirmed a directed verdict subjecting real property to execution on a judgment against the claimant’s deceased mother. The court held that the execution was not dormant, characterized the 1914 instrument as testamentary rather than a deed, and explained the requirements for possession to discharge a judgment lien under Georgia Code § 110-511. The court also held that any evidentiary errors were harmless under the circumstances.

Holdings

1. The execution was not dormant because it was timely entered and had recorded entries of nulla bona before the levy and claim.
2. An instrument expressly made and published as the maker's last will and testament, containing testamentary language and a proper attestation clause, is testamentary in character and is not a deed merely because its granting clause uses language appropriate to a deed.
3. To discharge a judgment lien under Code § 110-511, the claimant's possession must be actual, open, notorious, in good faith, and exclusive, and there must be notice of the adverse possession or circumstances sufficient to put the judgment creditor on inquiry.
4. The directed verdict for the plaintiff in fi. fa. was authorized because the evidence did not show when Page acquired qualifying possession or that she possessed the property for the statutory period.
5. The court expressly declined to decide whether a person who supports an owner under an agreement that the owner will execute a will devising property becomes a bona fide purchaser for value under Code § 110-511.
6. Any error in treating the levy entry as evidence that the judgment debtor died in possession was harmless because the claimant introduced evidence showing that she claimed through the judgment debtor and the directed verdict was properly supported by the entire record.
7. Any error in excluding the 1914 will because of an allegedly vague property description was harmless and did not require reversal.

Questions Presented

1. Whether the execution was dormant when it was levied in 1937.
2. Whether the 1914 instrument was testamentary in character rather than a deed.
3. Whether Page established the actual, open, notorious, good-faith, and exclusive possession required to discharge the judgment lien under Code § 110-511.
4. Whether the directed verdict for the plaintiff in fi. fa. was authorized by the evidence.
5. Whether the trial court's alleged burden-of-proof and evidentiary errors required reversal.

Disposition

affirmed