128 Ga. 193 | Ga. | 1907
(After stating the foregoing facts.) Many points are made in this ease, but it is substantially controlled by one. The decree rendered in 1899 fixed the* amount then due by Horne to Eodgers, and gave judgment therefor. So long as this decree remains of force, it is conclusive on that subject. To permit parties to go behind it, and set up various pre-existing reasons to show that such amount was not due, would be in effect to give the decree no force. If it is conclusive on any question, it is conclusive as to the amount then due. In Horne v. Rodgers, 113 Ga. 224, the provision in the decree that execution should issue for the amount decreed, “upon the filing of a good and sufficient warranty deed in fee simple,” was construed to mean that the vendor must tender a good and sufficient marketable title. Without discussing this ruling as an original proposition, it stands as the law of this case. It did not undertake to go behind the decree or to open up the whole controversy for a new litigation. But this was the construction placed upon the decree itself. In the decision, Simmons, O. J., said distinctly that Horne stood upon the decree, that the ruling was based upon it, and that “until the vendor filed a deed conveying such a title the vendee should not be compelled to pay.” Accepting the construction thus placed upon it, it amounted to this: A certain sum was • decreed in favor of Eodgers against Horne; and execution should issue therefor upon the filing by Bod.gers of a good and sufficient warranty deed in fee simple to the land involved. If Eodgers had immediately filed a good and sufficient warranty deed, it is quite clear that he would have been entitled to the amount adjudged in his favor, and that execution should have issued therefor. This could not have been reduced by setting np the fact that, during the time intervening between the original
Counsel for Horne have argued, with much earnestness and citation of authority, that, under the contract of sale in view of the want of perfect title in the vendor and the depreciation in value, a specific performance would not be decreed. But Carstarphen is not seeking specific performance of the contract of sale. He is the assignee of the judgment obtained by Rodgers, and he is seeking to collect it.
The court held that interest should be abated from the time of the decree until the title was perfected, and appeared to be of the opinion that Carstarphen would be accountable if there was any depreciation between the date of the decree and the time of the perfection of the title. But it was conceded that there was none. This being true, Horne suffered no injury by reason of the delay after the decree, construed as it has been by this court, and he lost no more than if the title had been made perfect immediately upon its rendition. The allegations of Horne in regard to attorney’s fees and expenses were not sufficient to authorize their recovery, and there was no error in so holding.
It may have been an unfortunate purchase for Mr. Horne to have bought property in 1892 of the value of $1,500, which he alleged depreciated until, in 1899, it was only worth $400. But he had some seven years to ascertain this depreciation, and, if it had furnished any good defense to set up as against his indebtedness, this should-have been done before the decree. In 110 Ga. 362, 366, it appears that an effort was made to show such depreciation, but the evidence was held to have been properly rejected. To allow the purchaser to assert first one defense against that suit, then another defense against, the carrying out of the decree, and finally to go behind the decree, practically disregard it altogether, and set up this defense, would be to leave that protracted litiga
Judgment, oh main bill of exceptions, affirmed; cross-bill dismissed.
