163 Ga. 911 | Ga. | 1927
Dissenting Opinion
dissenting. Stated in their chronological order, the pleadings in this case disclose the following state of facts: Worley. Adams bargained a certain tract of land in Hart County to Fowler and Ginn, in December, 1919, receiving a part of the purchase-price in cash amounting to $3,500, and the remainder in
The plaintiff invoked the assistance of equity, and the issue is to be determined by the application of equitable principles. The real question which is involved is whether the lien of the judgment obtained by the plaintiff in his suit upon the note is superior to the rights of the defendants as conveyed by the deeds upon which they rely. It • is a cardinal principle that if either one of two innocent parties must suffer, he who placed it within the power of a third person to work the wrong must suffer injury rather than one who has in no way contributed to the act from which injury resulted. Whichever party may lose in the transaction now sub judice, the loss was occasioned by the vendor of the land, the original payee of the note purchased by the plaintiff. At the time Holbrook purchased the note from Adams, and transfer was made by mere delivery of the note without indorsement or other guaranty, there was nothing to prevent the purchaser of the note from requiring a transfer in writing had he desired to insist upon it. If, as now insisted, the transfer of the note extinguished all interest of Adams, the vendor, in the land (the purchase-price of which, 'as insisted, being represented by the note), Holbrook could have demanded from Adams a deed conveying title to him, subject to the bond for title outstanding in the hands of the purchasers,
In Gould v. Bank of Statesboro, 105 Ga. 373, 379 (31 S. E. 548), Mr. Justice Little elaborately discusses the rights obtained by the transferee of a purchase-money note and the nature of the lien to which he may be entitled under circumstances practically identical with those disclosed in the case at bar. He says: “Manifestly, when a contract for the purchase and sale of land is made, and a bond for title given to the vendee, the vendor holds the title, unless more be stipulated, as security for the payment of the balance of the purchase-money due to him. Whenever the vendor is paid that balance, without himself incurring any liability, or guaranteeing the collection of the notes, or putting title to the land in the transferee for the purpose of making the land subject, he has been paid in full for his land, and no lien arises, by contract nor by operation of law, on the land originally sold, in favor of the transferee; and inasmuch as the vendee is entitled to the property unencumbered when the purchase-money is. paid according to his contract, his equity is made perfect whenever the vendor receives the amount of the purchase-money under the circumstances enumerated. The transferee of the notes does not stipulate for any lien, nor does he purchase one, and the law gives him none merely because of the fact that the notes which he bought and holds were given as part of the purchase-price of land, such notes having inherently and of themselves no lien. Therefore such transferee becomes a simple creditor of the original vendee. This condition of the transferee is in no way dependent on the question whether the notes were in fact given for a part of the purchase-money; and that the transferee under such circumstances obtains no lien affords no reason why the character of the note is changed. It is still a note for the purchase-money of land, but one to which no superior
Lead Opinion
The court below erred in sustaining the general demurrer to the petition, and in dismissing the suit.
Judgment reversed.
Dissenting Opinion
The court did not err in sustaining the general demurrer and in dismissing the petition.
(а) If either of two innocent persons must suffer, he who put it within the power of a third person to cause the injury must be the loser.
(б) Where the bona fide purchaser of a note given by the maker thereof in part payment of the purchase-price of land, though the latter fact does not appear on the face of the note, accepts said note by mere delivery from the payee without guaranty or any written indorsement of any'kind, the lien in favor of the original vendor of the land who has given a bond for title to the vendee of such land is extinguished so far as the same might affect subsequent purchasers of such land without notice, or persons advancing money as loans under a deed ’ given to secure the payment thereof.
(c) Where one buys a note given for the purchase-money of land, and the transfer of title to the note is effected by mere delivery, and thereafter the payee of the note conveys such land by deed to a third person, who in turn conveys title to still another person as security for his indebtedness, and such grantee named in the security deed has no knowledge or notice of the probable interest of the purchaser of the note or of his claim of lien based upon the ground that the note was given for a portion of the purchase-price of the land, the rights of the grantee in the security deed are superior to the lien of a judgment thereafter rendered in favor of the holder of the note, although in such judgment a lien upon the land in question was adjudged in favor of the purchaser of the note. Neither of the grantees in the security deed being parties to the suit in which the judgment was obtained, their rights would not be affected thereby, unless it was made -to appear that they knew of the rights of the transferee and holder of the note. .