158 Ga. 428 | Ga. | 1924
On June 8, 1906, Mrs. Josie L. Hendrick conveyed to P. E. Cuttino by deed (for the purpose of securing a debt) described land. Subsequently she contracted to sell 137 acres of the same land to J. L. Shelnutt, and conveyed the same to him by deed dated January 22, 1911. On January 2, 1909 (prior to the deed by Mrs. Hendrick to Shelnutt), Cuttino reconveyed all the land to Mrs. Hendrick for the purpose of levy and sale. Ei. fa. in favor of Cuttino against Mrs. Hendrick was transferred to Anderson & Brown, March 25, 1911. On November 7, 1911, the property was conveyed by sheriff’s deed to J. R. M. Carter, and on the same day Carter conveyed to James Beall an undivided half interest therein. The above appears from the brief of evidence. Carter and Beall filed a petition against Shelnutt and W. A. McWhorter, alleging that Shelnutt had privately, secretly, and without the knowledge and consent of petitioners taken possession of a portion of the land conveyed to them by the sheriff’s deed; that he was ploughing, cultivating, and renting the same to tenants, 'cutting and destroying the timber, and exercising acts of ownership; that Shelnutt had rented a small portion of the land to McWhorter, who had planted and growing on the same corn and other produce; that the defendants knew, when they took possession of said lands, that petitioners were the legal owners thereof, and that their purpose in doing so was to injure, damage, and harass petitioners, who have suffered damage to the extent of $200 as a result of the action of defendants; that Shelnutt is insolvent and unable to respond to any judgment which petitioners might' obtain at law; and that unless equity intervenes, they will be without .remedy to recover the damages .suffered at the hands of Shelnutt and his confederates. . The prayers were, • that the defendants be restrained by injunction from trespassing further upon the land; that Shelnutt, his agents, employees,, and confederates be permanently enjoined from trespassing upon or exercising acts of ownership over the same; that petitioners have judgment for
After a careful consideration of the evidence our conclusion is that the verdict must be set aside. The controlling issue in the case is whether or not the purchaser of the land at the sheriff’s sale bought subject to the rights of J. L. Shelnutt, acquired by the means of a deed from Mrs. Josie L. Hendrick, executed pursuant to and in accordance with an agreement between said grantor and grantee and P. F. Cuttino, the last named holding the security deed covering a larger tract of land, including the land in question. If the purchasers bought with notice of the agreement just- mentioned, the conveyance to them by the sheriff did not extinguish the rights of Shelnutt, but were subordinate thereto. If they bought without notice, the sheriff’s deed to them conveyed a title superior to the rights of Shelnutt. “He who takes with notice of an equity takes subject to that equity.” Civil Code (1910), § 4529. “In the case of Cambridge Valley Bank v. Delano, 48 N. Y. 326, it was held: ‘Where a purchaser has knowledge of any fact sufficient to put a prudent man upon inquiry which, if prosecuted with ordinary diligence, would lead to actual notice of some right or title in conflict with that he is about to purchase, it is his duty to make the inquiry; and if he does not make it, he is guilty of bad faith or negligence to such an extent that the law will presume that he made it, and will charge him with the actual notice he would have received if he had made it’; and this doctrine is supported by numerous authorities. Wade, Notice, § 17, and au
' In addition to the recorded deed, the evidence established, without conflict, that Shelnutt was in possession of the land in dispute at the time of the sheriff’s sale. A. G. Hendricks, sworn for the defendant, testified: “J. L. Shelnutt was put in possession of the land in controversy in 1907, at the time he contracted for it, and he remained in possession until his death. He was in possession on the date this [land] sold down here and Carter bought it, he had his deed to it. In reply to the question as to how J. E. M. Carter knew Shelnutt was in possession of this land, I answer, when we sold the second tract me and him talked about the trade about buying the notes. The second tract was sold to Shelnutt. I don’t know as I told Carter that Shelnutt was in possession of the Eretwell place at that time, but he knew it. In answer to the question, did he tell you he knew Shelnutt was in possession of the Eretwell place? I answer, we talked about it, yes. That was before the sale down here by the sheriff, before he purchased the land at the sale.” J. T. Jackson, sworn for the defendant, testified: “In reply to the question as to who was in possession of the land at that time [of the sale], I answer Jim Shelnutt was there on it. I don’t remember how long he had been in possession of it; some time though. I don’t know how many years. He remained in possession of it until his death. This sale was before his death.” This witness also testified that he had a conversation with Dr. Carter, one of the plaintiffs, on the day of the sale, and that the latter inquired if Shelnutt was in town, and spoke about Shelnutt filing a claim to his land, and said the land was advertised for sale, and that if it were he, Carter, instead of Shelnutt, he would be there to file a claim to it; and, after the sale, that Dr. Carter wanted the witness to find out what Jim Shelnutt was going to do about it. J. E. Thompson testified that on the day the land was sold “a man by the name of Kelly lived on the land; that
The above constitutes, either literally or in substance, all of the evidence on the question of possession. Properly construed, this evidence shows without conflict that J. L. Shelnutt was in possession of the land in dispute on the day of the sale, and had been since 1907, and continued in possession until his death thereafter. The evidence for the defendant Shelnutt was positive and unequivocal that he was in possession at all times within the period stated, either in person or by his tenants. The utmost that can be said of the testimony for the plaintiffs is, as stated by Dr. Carter and Judge Beall, that on the day of the sale Shelnutt was not “living” on the land in dispute but was “living” at Centralhatchie. Judge Beall also testified that Shelnutt had a store at Centralhatchie. Entire and literal credence may, and doubtless should be, given to the testimony of Dr. Carter and Judge Beall. When this is done, their evidence does not conflict in any way with the testimony of the defendant. Judge Beall testifies that he found Kelly there on the land, and the undisputed evidence is that Kelly was a tenant working for Shelnutt. Conceding that Shelnutt was conducting a store and “living” at Centralhatchie, this does not deny his possession at the same time of the land in question. Therefore
The second and third headnotes do not require elaboration.
Judgment reversed.