114 Ga. 655 | Ga. | 1902
The Georgia State Building and Loan Association of Savannah brought against Eaison an action to recover possession of a described parcel of land. At the trial the following facts appeared: Branham, Brown & Owens were the common grantors of bothplain
When land is sold and a portion of the purchase-money is paid by the vendee, and the vendor delivers to the vendee a bond conditioned to make titles upon the payment of the balance of the purchase-money, both the vendor and the vendee have a beneficial interest in the land, and each may sell or assign his interest, and the interest of either will pass to the purchaser at a sale had under
What would be the effect if the purchase-money notes were transferred by the vendor but in such a way that the transfer would be good only in equity, the legal title to the notes remaining in the ' vendor, that is, where the notes were payable to the order of the vendor and were merely delivered to the transferee without indorsement or written assignment ? This question is answered by the ruling made in the case of Smith v. Jennings, 74 Ga. 551. In that case Jennings sold a tract of land to Reynolds, taking his note for the purchase-money, payable to order, and deposited this note, without indorsement or written assignment, with a bank as collateral security for a debt due by him to the bank. Subsequently to this a judgment was obtained against Jennings, and an execution issued thereon was levied upon the land. It was held that the land was not subject to the execution; Mr. Chief Justice Jackson in the opinion saying, “ Although this note, in the case at bar, was negotiable only by endorsement, so as to pass the legal title, yet the equitable interest or title therein was in the bank, and it could hold it against Jefferson Jennings until the debt was paid; moreover, it could collect it out of the maker by suing in the payee’s name for its use.” Taking together all of the decisions cited above, the rule of force in this State as deducible therefrom seems to be, that whenever the vendor of land, who has sold the same and given a bond for titles, transfers the evidence of debt held by him for the purchase-money, whether such transfer has the effect to vest the legal title to the paper in the transferee, or merely to vest the equitable interest therein, the legal title remaining in the vendor, he has, after the
There are some rulings by this court which are apparently in conflict with the principles ruled in the cases cited above and which are followed in this case; but upon an examination of those cases it will appear that the conflict is not real but only apparent. For instance, in the cg.se of Ware v. Jackson, 19 Ga. 452, the rule laid down is that a judgment is a lien on all of the property of the defendant in execution from its date, and that if there is a good subsisting legal title in the defendant at the time the judgment is rendered, the property is hound. In that case Baker sold land to Iverson in 1845, and gave a bond for titles. In 1846 Ware recovered judgment against Baker. In 1848 Iverson paid the purchase-money and received a deed from Baker, and sold to Jackson. It
The conclusion of the whole matter is this: When a vendor of land gives to his vendee a bond for titles,, and retains the legal title as security for the payment of the purchase-money, a purchaser from the vendor at private sale, or the purchaser at a sale had under an • execution against the vendor upon a judgment rendered after the date of the bond for titles, who has no notice, actual or constructive, of the existence of the bond for titles, acquires a-title to the property superior to that of the holder of the bond. If, however, such purchaser, either at private sale or ‘judicial sale, as the case may be, has notice, either actual or constructive, of the existence of the contract of sale or bond for titles, he acquires only whatever interest the vendor actually had in the land at the time of the purchase; and if the vendor, prior to the date of the private sale, or prior to the date of the judgment upon which the judicial sale was founded, has transferred all of the unpaid purchase-money notes, then the purchaser would acquire no interest whatever in the property; and this is true notwithstanding the legal title to the land was at the date of the sale in the vendor and the legal title to the purchase-money notes was also in him at that date, and it is immaterial whether the notes were transferred without recourse, or with a guaranty of payment. By an application of the principles above laid down to the facts of the present case, it is manifest that the judgment under review is correct.
Judgment affirmed.