163 Ga. 169 | Ga. | 1926
Lead Opinion
(After stating the foregoing facts.)
Upon the overruling of the demurrer to the petition as amended, which judgment was not excepted to in time, the petition stood as setting out a cause of action, the court holding, in effect, that the petitioner alleged a good title to the land. She alleged that Alfred D. Harden sold, transferred, and assigned to Mrs. Meta H. Elliott, the plaintiff in this ease, the indebtedness secured by the security deed, but that Alfred D. Harden did not convey to Mrs. Elliott the legal title to the land; that the widow and children of Alfred D. Harden, he being dead, who inherited the legal title to the land in controversy, hold the title to the land for the special purpose only of securing the indebtedness of William L. Gignilliat and John A. Heyward to Mrs. Meta H. Elliott. She proved her case as laid, and was entitled to recover. Brooks v. Rawlings, 138 Ga. 310 (75 S. E. 157). She also connected herself up with the legal title by showing that the persons holding the legal title held it for the benefit of the transferee, and she therefore had an equity in the property. In the case of Clark v. Havard, 122 Ga. 273 (50 S. E. 108), Mr. Justice Cobb said: “The grantee in a security deed may sue the debt to judgment and cause the land to be levied upon and sold after a reconveyance to the debtor, or he may bring an action to recover possession of the land upon the title derived from the security deed. He may pursue these remedies concurrently, and neither is an obstacle in the way of the other until the debt has been fully satisfied under the operation of one or the other proceeding. Ray v. Pitman, 119 Ga. 678, 681 [46 S. E. 849], and cit. A transfer of the debt by the grantee does not, in the absence of a conveyance, pass to the transferee title to the land. Sheppard v. Reese, 114 Ga. 411 (2) [40 S. E. 282], But as a result of such transfer the transferee acquires an equitable interest in the security effectuated by the deed. Van Pelt v. Hurt, 97 Ga. 660 (2) [25 S. E. 489], After the debt has been transferred the grantee in the security deed holds the title for the benefit of the transferee. Shumate v. McLendon, 120 Ga. 397 (10) [48 S. E. 10], The transferee may proceed to collect the debt by
Another question is, is the sheriff’s levy of the tax execution upon the land in controversy excessive and void, and the sale thereunder a nullity? The jury rendered a verdict that the levy was excessive, and found for the plaintiff the sum of $400 damages; the amount of the damages being subsequently written off by the defendant in error; and ground 8 of the motion for new trial is therefore expressly abandoned. Was the jury authorized to find that the levy was excessive? William L. Gignilliat testified as follows: “Woodville is a desirable property for residential purposes, on account of its location, being on a salt-water creek. It
Other headnotes do not require elaboration.
Judgment affirmed.
Concurrence Opinion
We are of the opinion that the ruling in the first headnote is sound, and under that ruling the plain- ■ tiff was entitled to recover. We therefore concur in the judgment of affirmance.