Dennison Mfg. Co. v. Wright, 156 Ga. 789, 797 ( 120 S.E. 120) (1923). See also State Highway Dept. v. H. G. Hastings Co., 187 Ga. 204, 215 ( 199 S.E.2d 793) (1938); Tarpley v. Carr, 204 Ga. 721, 727 ( 51 S.E.2d 638) (1949) (City officers were not de facto officers of office created under an unconstitutional charter); Franklin v. Harper, 205 Ga. 779, 784 ( 55 S.E.2d 221) (1949); Baggett v. Linder, 208 Ga. 590, 591 ( 68 S.E.2d 469) (1952); Milam v. Adams, 216 Ga. 440, 444 ( 117 S.E.2d 343) (1960); K. Gordon Murray Productions, Inc. v. Floyd, 217 Ga. 784, 787 ( 125 S.E.2d 207) (1962) ("... the remedy provided in the ordinance is not even law if the petitioner's constitutional attack is sustained.") Dobson v. Brown, 225 Ga. 73, 76 ( 166 S.E.2d 22) (1969) ("`Not even estoppel can legalize or vitalize that which the law declares unlawful and void.'"); and Mapp v. First Ga. Bank, 156 Ga. App. 380 ( 274 S.E.2d 765) (1980). (See note 7, infra.)
Each of those cases dealt with a security deed executed prior to the enactment of the 1941 Act, and each case held that as applied to a security deed executed prior to the effective date of such Act the Act was unconstitutional, but none of such cases held that the Act was unconstitutional as to a security deed executed after the effective date of such Act. While an unconstitutional Act confers no authority upon anyone, and affords no protection to anyone, and it is really a misnomer to call such an Act of the General Assembly a law ( Milam v. Adams, 216 Ga. 440, 444 ( 117 S.E.2d 343)), yet it is also "well settled that by numerous decisions of this court that where a part of an Act is valid and a part unconstitutional, the valid part will be upheld `when it is reasonably certain that to do so will correspond with the main purpose which the legislature sought to accomplish by its enactment, if, after the objectionable part is stricken, enough remains to accomplish that purpose.'" Grimes v. Lindsey, 219 Ga. 779 (2) ( 135 S.E.2d 860), and citations.
We reject this contention for two reasons, to wit: (1) the remedy provided in the ordinance is not even law if the petitioner's constitutional attack is sustained. Dennison Manufacturing Co. v. Wright, 156 Ga. 789 ( 120 S.E. 120); Milam v. Adams, 216 Ga. 440 ( 117 S.E.2d 343); and (2) even if the ordinance is constitutional, the remedy which it affords, or any other remedy, is not adequate or available to this petitioner, since the ordinance applies only to exhibitors of pictures and not to distributors, and petitioner is a distributor only. The petition asserts that exhibitors in Atlanta have been valuable customers of the petitioner, and at least some of them now wish to contract for its picture but because of the censorship ordinance and statements of the censor that the picture in question, which petitioner alleges is not obscene, will not be approved, its potential customers refuse to contract with it, and in this way its business is being destroyed, and petitioner can not require the exhibitors to resist or violate the ordinance or in any way obtain a court decision as to its constitutionality.
See generally OCGA § 11-9-601 (rights of secured party after default). See, e.g., OCGA § 11-9-615 (d); Milam v. Adams, 216 Ga. 440, 443 ( 117 SE2d 343) (1960) ("Where at the [sheriffs] sale the property brings more than enough to satisfy the judgment, it is the duty of the sheriff to turn the excess over to the defendant in fi. fa.") (citation omitted). MIKELL, Judge.
He buys at his peril insofar as the judgment, the levy, and the deed are concerned; and where, as here, the deed conveyed no title because the defendant in fi. fa. had no leviable interest in the property, he acquired no title." Milam v. Adams, 216 Ga. 440, 442 ( 117 S.E.2d 343) (1960). We agree with Macioce that May's security interest in the vehicle is unperfected.
TOWNSEND, Presiding Judge. This court having, in Milam v. Adams, 101 Ga. App. 880 ( 115 S.E.2d 252) affirmed the judgment of the trial court overruling the general demurrer to the petition, and that judgment having been reversed in Milam v. Adams, 216 Ga. 440 ( 117 S.E.2d 343), the judgment of this court in Milam v. Adams, 101 Ga. App. 880, supra, is hereby vacated, and the judgment of the trial court overruling the general demurrer to the petition is reversed in accordance with the opinion of the Supreme Court. Judgment reversed. Carlisle, Frankum and Jordan, JJ., concur.
The prevailing view is that, where title fails, the purchaser should not be allowed to recover from the judgment creditor. See Barth v. A. B. Schuster Co. (1923), 25 Ariz. 546, 550, 220 P. 391, 392-93; Copper Belle Mining Co. v. Gleeson (1913), 14 Ariz. 548, 552-55, 134 P. 285, 287-88; Kreps v. Webster (1929), 85 Colo. 572, 277 P. 471; Milam v. Adams (1960), 216 Ga. 440, 117 S.E.2d 343; Lewark v. Carter (1889), 117 Ind. 206, 20 N.E. 119; Tonge v. Radford (1931), 103 Pa. Super. 131, 156 A. 814. We note that our appellate court has held, in like circumstances, that if the purchaser has not yet paid his bid at the time the sale is declared void, he is not bound to do so. ( Wilson v. Hilligoss (1935), 278 Ill. App. 564, 574; Thrift v. Frittz (1880), 7 Ill. App. 55, 58.) Irrespective of our view of the soundness of these decisions, they are not controlling in a situation in which, as here, the purchase money has been paid and applied by the judgment creditor to the judgment.
As to Act Number 467's being unconstitutionalsince it was not enacted by the York County "GoverningBody:" 200 S.C. 122, 20 S.E.2d 645; 243 F. 222; 262 S.C. 565, 206 S.E.2d 875. As to Act Number467's being unconstitutional as it flows from and is predicatedon Act Number 448, which is unconstitutional: 82 C.J.S., Statutes, Section 75; 185 Neb. 629, 177 N.W.2d 599; 216 Ga. 440, 117 S.E.2d 343; 156 Ga. 789, 120 S.E. 120; 226 Ga. 715, 177 S.E.2d 249; 17 Ohio App.2d 247, 246 N.E.2d 607. As to Act Number283's being unconstitutional in whole or in part as it isimproperly titled: Article III, Section 17 of the South Carolina Constitution; 73 Am. Jur.2d, Statutes, Section 120; 276 So.2d 592, 290 Ala. 349; 203 Ind. 547, 180 N.E. 865.