The court did not err in directing a verdict for the plaintiff in execution.
An execution in favor of Woodbury Banking Company against H. L. McKenney, dated February 1, 1952, from the Superior Court of Meriwether County, was levied by the sheriff on described property as the property of the defendant in execution, on April 26, 1952. Mrs. H. R. Routon filed a claim to the property levied on.
Upon the trial of the claim in the superior court, the plaintiff in execution introduced in evidence a deed to secure debt from H. L. McKenney to the plaintiff in execution, dated April 25, 1927, duly recorded June 2, 1928; a note from H. L. McKenney to the plaintiff in execution, dated June 30, 1932; an execution from the Superior Court of Meriwether County in favor of the plaintiff in execution against H. L. McKenney; and a quitclaim deed for the purpose of levy and sale of the property described in the deed to secure debt.
The claimant introduced in evidence a deed to secure debt from H. L. McKenney to the claimant, dated August 6, 1937; a note from H. L. McKenney to the claimant in the sum of $5000, dated the same date as the deed to secure debt; and a quitclaim deed from H. L. McKenney to the claimant dated June 21, 1950.
At the conclusion of the evidence, the court directed a verdict for the plaintiff in execution, and against the claimant. The claimant's motion for new trial, as amended, was overruled, and the exception is to that judgment.
The deed to secure debt from H. L. McKenney to Woodbury Banking Company (the plaintiff in execution) is prior in date and was duly recorded, and would constitute a prior title or lien over the deed to secure debt of the claimant, under the general rules of law. It is contended by the claimant, however, that the decision of this court in McKenney v. Woodbury Banking Co., 208 Ga. 616
(68 S. E. 2d, 571), to the effect that Woodbury Banking Company was not entitled to a "special lien" upon the property described, was a ruling that the plaintiff in execution could not enforce its deed to secure debt. The sole objection by the claimant to the introduction of the deed to secure debt from McKenney to Woodbury Banking Company was the contention that this court had held that the bank was not entitled to a "special lien" upon the property.
629, 632 (131 S. E. 505). A special or equitable lien is not an estate or property in the thing itself, nor a right to recover the thing. "It is simply a right of a special nature over the thing, which constitutes a charge or encumbrance upon the thing, so that the very thing itself may be proceeded against in an equitable action." Collier v. Bank of Tupelo, 190 Ga. 598, 601 (10 S. E. 2d, 62); Federal Land Bank of Columbia v. Farmers & Merchants Bank, 177 Ga. 505, 512 (170 S. E. 504); 33 Am. Jur. 427, 18; 53 C. J. S. 869-872, 20 (a, b).
Prior to the Uniform Procedure Act, statutory liens could be enforced only in the manner provided by law. Coleman v. Freeman, 3 Ga. 137; Pease v. Scranton, 11 Ga. 33, 38; Osborn v. Ordinary of Harris County, 17 Ga. 123; Newton Manufacturing Co. v. White, 47 Ga. 400, 404.
Since the Uniform Procedure Act, equity may enforce liens created by express contracts under proper pleadings, and may protect equitable rights by impressing liens in the absence of a contract. Lowery Lock Co. v. Wright, 154 Ga. 867, 870 (115 S. E. 801); Smith v. Hancock, 163 Ga. 222 (136 S. E. 52); Smith v. Albright-England Co., 171 Ga. 544 (156 S. E. 313); Cook v. Securities Investment Co., 184 Ga. 544 (192 S. E. 179); Grant v. Hart, 192 Ga. 153 (14 S. E. 2d, 860); Pardue Medicine Co. v. Pardue, 194 Ga. 516 (22 S. E. 2d, 143); Parnell v. Wooten, 202 Ga. 443 (43 S. E. 2d, 673).
185, 186 (3), 169 S. E. 850; Cone v. State, 184 Ga. 316 (1), 191 S. E. 250)--no ruling was made by this court as to the validity of the 1941 act. The attack upon the 1941 act did not involve the bank's note, or its right to a "special lien," which could be, and was ruled upon, without the necessity of determining the validity of that act. In the absence of special facts authorizing equitable relief, the bank would not be entitled to a "special lien" on the land described in its deed. Lovell v. Frankum, 145 Ga. 106 (88 S. E. 569).
In McKenney v. Woodbury Banking Co., supra, the bank prayed for the equitable relief of a "special lien," but failed to plead any facts to show that it was entitled to this equitable remedy. The bank abided by a verdict and judgment which made no reference to a "special lien," and it could not thereafter insist that it had the equitable right of a "special lien," under the Code, 110-501.
No ruling was made by this court on the validity of the bank's deed as a statutory lien, or as a conveyance of title for the purpose of securing a debt. Since the sole objection to the introduction of the deed to secure debt from McKenney to the bank was without merit, the court did not err in admitting the deed in evidence, and in directing a verdict for the bank.
Other contentions of the claimant are without merit.
Judgment affirmed. All the Justices concur, except Atkinson, P. J., not participating.