116 Ga. 728 | Ga. | 1902
The executors of McAfee brought their action against Keen, alleging that they as executors had sold him a certain tract of land for the purchase-price of which he had given them four promissory notes for $200 each, payable in successive years; that two of these notes had become due and that the other two were not due. They prayed for a judgment for the amount of the two matured notes, and a special lien on the land; and also prayed that the sheriff sell the land, and, if it brought more than enough to pay off the two notes sued on, that he be directed to hold the surplus, and, on the maturity of the notes not due at the time of the filing of the suit, to apply it to the payment of these notes. At the time of trial of the case all of the notes had become due. The defendant’s plea having been stricken, the judge directed a verdict against the defendant on all four of the notes, with a special lien on the land. Judgment was entered up accordingly, giving the plaintiffs a general judgment and also a special lien upon the land, and directing that the land be sold, and that if there was any surplus after paying off all the notes, it should be turned over to the defendant.
1. The defendant excepted to the direction of the verdict and to the judgment thereon, on the ground that the judge had no power or authority to direct a verdict upon the two notes not sued on, or to enter judgment thereon. We think these exceptions well taken. Generally a person holding a written contract of another has no right to sue upon it until there is a breach of the contract, or to have any judgment on such contract without a suit thereon. The present suit was upon two notes which were past due, and the petition alleged that there were two other notes not then due, petitioners praying for a judgment for the amount of the two notes due, with a special lien on the land, and that if there was a surplus remaining after paying the notes then due, it should be held by the sheriff until the maturity of the other notes and then applied to them. The judge for some reason — probably because all of the notes had matured before the date of the trial — directed a verdict for the full amount of all of the notes, and entered up judgment accordingly, giving a special lien for the full amount, and directing the sheriff to sell the land and to turn over to the defendant any surplus that might remain after paying off all of the notes. We think this was clearly erroneous. There was no suit upon the
2. The defendant also complained that the judge erred in striking his pleas. These pleas were, in substance, that the plaintiffs represented to him that they had a right to sell the land, whereas in truth and in fact neither they nor their testator had any title to the land, and there was, therefore, no consideration for the notes;
Jiodgment reversed.