1. There was no error in overruling the general demurrer to the petition. The plaintiffs were the holders of two promissory notes given for the purchase-money of land. The vendor had transferred and indorsed these notes to the plaintiffs. The vendee and the vendor were both insolvent, according to the allegations of the petition. The vendor had placed a deed to the vendee in escrow; and under the terms of a written agreement, referred to in the petition as an “escrow agreement,” it was provided that the deed was to he delivered to the vendee when the final purchase-money note or notes were paid. While this does not state that the deed was not to be delivered to the vendee until “all” the purchase-money notes were paid, and the expression “until the final purchase-money notes are paid” is used, we are of the opinion that the proper construction of this is that the deed was to be held in escrow until all the purchase-money was paid. The notes fell due upon different dates. The two falling due first were those held and sued upon by the plaintiffs; and it was evidently in the mind of the vendor who signed this “escrow agreement” that when the final purchase-money note, that is, the one falling due last, should he paid, the others would have been paid also. And we do not think that, under a paper like this, the vendee of the property and the transferee of purchase-money notes other than those held by the plaintiffs, the latter being the depositary of the escrow deed, could, by the swift manipulation of documents, shake off the rights which the transferee and indorsee of the two purchase-money notes falling due first had to subject the property conveyed by the escrow deed to his demands in the proportion which it bore to the entire amount of the purchase-money notes. One can not read the history of the transaction between *429Field and McKinney on June 22, 1911, without being forced to the conclusion that these two parties were of the opinion that it was the purpose of this escrow agreement to protect the other transferees of Farnsworth as well as Field, and that they would shake off the rights of the plaintiffs under the terms of the instrument called an “escrow agreement” by the execution of a series of papers which would change the status of the title to the property. And so, on the date last mentioned, June 22, 1911, before the conditions upon which the deed was to be delivered had been executed, Field, the depositary of the escrow deed, delivered the deed to McKinney, the grantee named in the same, and immediately thereafter, and on the same day, McKinney executed and delivered to Field a warranty deed to the same property; and immediately after this transaction, on June 22,1911, Field executed and delivered to McKinney a bond for title to the same property, conditioned to make McKinney a deed upon the payment of certain promissory notes, and the notes referred to were those given by McKinney for the purchase-price of the property, with the exception of the two notes first falling due, of which the plaintiffs were the holders and upon which they are now suing. We do not think that the petition charging that these three instruments were executed on June 22, 1911, under the circumstances set forth in the petition, and that they were executed for the purpose of defrauding petitioners, should have been dismissed upon general demurrer, if in any case a transferee and indorsee of a note given for the purchase-money of land, where the vendor retains title to the property, can, by appropriate proceedings subject the land to his debt. And that he can do so has been ruled by this court. Ray v. Anderson, 119 Ga. 926 (47 S. E. 205).
2-6. Headnotes 2 to 6 require no elaboration.
Judgment affirmed.
All the Justices concur.
AI-generated responses must be verified and are not legal advice.
