Glover v. Cox

130 Ga. 476 | Ga. | 1908

Atkinson, J.

The action was complaint for land. After the 'introduction of evidence by the plaintiff and the defendant, the ■court directed a verdict in favor of the latter, and the plaintiff i excepted. The plaintiff introduced sufficient evidence of title to support prima facie her action. The defendant filed an equitable-plea. In support of the plea, the defendant, among other muniments of title, relied upon a quitclaim deed executed by M. McD. Pritchard and W. R. Dimmock, as trustees of the National Building Association of Baltimore City, conveying the land in dispute to-the-plaintiff, reciting that it was executed for the sole purpose of' levying upon the land to satisfy an execution in favor of the said' National Building Association of Baltimore City against the plaintiff, issued upon a judgment rendered against her for the recovery of a debt secured by a securitj'- deed .which she had previously executed to said company to secure a loan. The quitclaim deed above mentioned contained in its caption the words, “Georgia,. Fulton county.” It was signed by M. McD. Pritchard, Trustee, and W. R. Dimmock, Trustee. The attesting clause contained the following: “Signed, sealed, and delivered in the presence of Robert Ogle [seal of court], clerk of superior court of Baltimore City, the same being a court of record. Peter Stevens [signature]. As to Dimmock: J. R. Fox, J. PL Porter, Notary Public, Fulton county, Georgia.” The deed thus executed was recorded in the general records of Fulton county; where the land was located, June 7, 1900. In connection with this deed the defendants introduced an agreement between counsel for the plaintiff and defendant,, dated December 7, 1906, reciting that said deed “was actually-executed in Baltimore City by Pritchard, in the presence of Peter Stevens and Robert Ogle, clerk of the superior court of Baltimore-City, and that the superior court of Baltimore City is a court of record.” When the deed was offered in evidence, .plaintiff’s counsel objected to its admission, upon several grounds, among them, that the deed was improperly executed and improperly recorded,, and a lawful levy could not be made upon the land, and that the sale of the property, made by the sheriff in obedience to the command of the court, as expressed in the execution issued upon the: judgment before mentioned, was void.

Dnder the view we take of the case, it is unnecessary to determine whether the deed was properly executed and recorded. There-was in fact a sale by the sheriff, after default and judgment for recovery of the debt secured by the security deed, and the plaintiff in fi. fa. became the purchaser of the property, and afterwards sold it to the defendant in the present case, who holds a bond for title with a part of the purchase-money paid. Under the rulings in Ashley v. Cook, 109 Ga. 653 (35 S. E. 89), and Askew v. Patterson, 53 Ga. 209, assuming that the sheriff’s sale- was void, the purchaser entering possession in pursuance of the sale acted under ■color of law, and did not become a trespasser. If the sale was void, it did not disturb the lien of the plaintiff in fi. fa. or exhaust his security deed. He could proceed under that as if no sale had been attempted. Hamilton v. Rogers, 126 Ga. 27 (54 S. E. 926). The grantee in a security deed, after the debt becomes due, may recover the property from the grantor in ejectment. Oellrich v. Georgia R., 73 Ga. 389. If such grantee could recover in ejectment upon the strength of the title conveyed by a security deed, it necessarily follows, under similar circumstances, that he could defend in ejectment, by force of such deed, as against the grantor in the security deed. One who bought from the grantee in the ■security deed (who was also the purchaser at the sheriff’s sale), and received from him a bond for title and possession thereunder, by showing these facts, so connected her possession and right of possession with the title conveyed by the security deed that, if the sheriff’s sale was void, she could set up such paramount outstanding title under the security deed, to defeat a recovery in ejectment by the maker thereof. If the sheriff’s sale was void, the maker ■of the security deed, in order to recover possession, must pay the ■debt in full, and thus discharge the security; or, if necessary, with proper pleadings and proper parties, upon tender of the amount due, she might proceed to compel a reconveyance to her■self. In this case there was no tender, no equitable pleading, no ■showing that any accounting was necessary, and no effort upon the part of the debtor to redeem. She merely brought suit in •ejectment against the holder of the bond for title from the original grantee in the security deed and purchaser at the sheriff’s sale. Under the facts she could not recover. There was nothing to submit to the jury, and there was no error in directing a verdict in favor of the defendant. See also, in this connection, Hamilton v. Cargile, 127 Ga. 763 (56 S. E. 1022) ; Shumate v. McLendon, 120 Ga. 396 (48 S. E. 10).

Judgment affirmed.

All the Justices concur.