100 Ga. 719 | Ga. | 1897
1. 'When a Tendee seeks to avoid the payment of the-purchase money of land in defense -to a suit brought by the-vendor agaiuslt him, on the ground that the vendor had no title at the time the deed was executed, and where the vendee is in undisputed possession under such deed, it is encumibenit upon him in his plea to set up such facts as would show -that the vendor ihlad no title. If there are several, ways in which the venidtor’s titile ibo the premises could have-been acquired, a plea of want of title in defense to a suit for the purchase money would be fatally defective, if it failed, to negative every fact which would be consistent with title-in the vendor. The vendor might have title by a chain beginning with a grant'from the State; or where the- title; originates -with a municipal corporation, by a chain beginning with that corporation; or a title by possession and prescription. Therefore where -the vendee pleads want of title,, ho must show, -mat only that his vendor did moit have a complete paper title, hut he must negative facts which would show title by prescription. In this case one of the defendant’s pleas setting up want of title shows that the vendor-did not have a complete chain of title, either from the State, or from the city of Macon, hut did show conveyances, to tire vendor and his predecessors in title extending hack •to May 5, 1873. The plea did not allege that the vendor- and his jtredecessors in title were not in iiossession under these deeds; and as possession consistent with them for the period between 'the date of the sale 'and May 5, 1873, would have made a good prescriptive title in the vendor, a plea failing to negative this fact was defective, and properly stricken on demurrer.
2. In the sale of land it is competent for the parties io< contract for a title of a particular kind and character, although a title of a different character would be, under the. law, good. In the absence of a stipulation for a particular-kind and character of title, a good title, under the law, would
3. The character of wia-rranlty which the vendor would give to the vend-ee in the sale of land is a matter purely f or stipulation, and if 'the vendor agrees at the time -of ithe purchase to deliver to the vendee a deed which contains a warranty ¡of a specified character, -then a failure to give the¡ warranty would be a sufficient reason for 'the vendee to refuse to receive the deed; but where it appears from the allegations in the plea setting up a failure -on the part of the-vendor to comply with his contract as to- the warranty agreed-.
.authorizing it. Shacklett v. Ransom, 54 Ga. 350, 353.
Jlodgment -affirmed.