166 Ga. 871 | Ga. | 1928
Lead Opinion
B. H. Holbrook filed his petition against Worley Adams, B. J. Eowler, and C. A. Ginn, in which he made these allegations : On or about December 31, 1919, Adams sold a described tract of land to Fowler and Ginn. The purchasers paid in cash practically half of the purchase-price, and executed their joint promissory note for the balance of the purchase-money, dated December 31, 1919, falling due January 1, 1921, for the sum of $3,-4,81.50, payable to Adams or bearer. Adams, for value received, and before maturity, sold and delivered, without indorsement, said note to Holbrook. Holbrook, as the bona fide holder of said note, obtained judgment thereon against Fowler and Ginn in Franklin superior court on September 4, 1923. In his suit in which said judgment was obtained Holbrook alleged that this note was' given
Fowler demurred to the petition on the grounds, that there is no equity therein, that the plaintiff is not entitled to the equitable relief prayed, and that he has an adequate remedy at law by levy and sale of said land, it appearing from the petition that a deed had already been made by Adams to him. Fowler filed also his answer in the nature of a cross-petition, and under the allegations thereof prayed that the Sessions Loan & Trust Company be made a party to the cause. An order was passed making this company a party to the cause, as prayed by Fowler. On June 29, 1925, this company demurred to the petition upon the ground that its allegations constitute no ground for equitable or legal interference with its legal and equitable rights and interests. The trial judge sustained the demurrers, and dismissed the case. That judgment was reversed. Holbrook v. Adams, 163 Ga. 911 (137 S. E. 76).
A majority of this court in its judgment of reversal held that “The court below erred in sustaining the general demurrer to the petition, and in dismissing the suit.” By that ruling this court
But it is insisted that Adams and Grinn did not demur to the petition, and that as the case had not been marked in default as to them, they could demur, or orally move to dismiss the petition, upon the ground that the plaintiff was not entitled to any legal or equitable relief thereunder. Both of these parties were defendants in error to the bill of exceptions when the case was here before. All of the defendants in error moved to dismiss the bill of exceptions. By the judgment which was reviewed when the case was here before, the trial judge dismissed the case as to all of the defendants, and not as to the demurring defendants alone. If that judgment had been affirmed by this court, by dismissal of the bill of exceptions, it would have finally disposed of the case as to all the defendants. In these circumstances it would seem that the ruling of this court, when the case was here before, fixed the law of the case as to all of the defendants. But conceding that this was not so, we are of the opinion that the ruling of the majority, when the case was here before, is correct. In cases where a contract to purchase land has been made, or bond for title made, or the purchase-money has been partly paid, and the purchase-money due has been reduced to judgment by the payee, assignee, of holder of such debt, the holder of the legal title, or, if dead, his executor or administrator, shall, without the order of any court, make and execute to the defendant in fi. fa., or, if he be dead, to his executor or administrator, a quitclaim conveyance to said land, and file and have the same recorded
Concurrence Opinion
concurring specially. On the general features of this case I adhere to the views heretofore expressed in my dissenting opinion in Holbrook v. Adams, 163 Ga. 911 (supra); but I concur in the present judgment, because I am of the opinion that the judgment of the majority when the case was here before fixed the law of the case.