158 Ga. 546 | Ga. | 1924
(After stating the foregoing facts.) Whether the trial judge erred in his instructions to the jury, and whether the verdict is contrary to the law and evidence, or either, depends upon
Undoubtedly, “when land is sold and a portion of the purchase-money is paid by the vendee, and when the vendor delivers to the vendee a bond for title conditioned to make title upon the payment of the balance of the purchase-money, both the vendor and the vendee have a beneficial interest in the land which either may sell or assign.” Dunson v. Lewis, 156 Ga. 692, 700 (119 S. E. 846); Georgia State B. & L. Asso. v. Faison, 114 Ga. 655 (40 S. E. 760). The same principle is applicable in the ease of the vendor and vendee in a security deed. In such an instrument the vendee has the legal title which he holds as security for the payment of the money thereby secured; and the vendor has an equitable interest in the premises conveyed, which he can sell or to which he can make a valid second security deed, or on which he can create a valid second lien, subject to the paramount right of the original grantee to have all the land appropriated to the payment of his debt. Williams v. Foy Mfg. Co., 111 Ga. 856 (36 S. E. 927); Willingham v. Huguenin, 129 Ga. 835 (60 S. E. 186); Owens v. Keeney, 146 Ga. 257 (91 S. E. 65); Beckcom v. Small, 152 Ga. 149 (108 S. E. 542); Cook v. Georgia F. & O. Co., 154 Ga. 41 (113 S. E. 145); Carter v. Johnson, 156 Ga. 207 (119 S. E. 22). A judgment against the vendor in a security deed, obtained after its execution, binds his equitable interest and estate thereby conveyed. O'Connor v. Georgia R. Bank, 121 Ga. 88 (48 S. E. 716); Sloan v. Loftis, 157 Ga. 93 (120 S. E. 781). This being so, the vendor in such security deed cannot defeat the lien of such judgment by
A more serious and important question in this case is' whether the plaintiff in ii. fa. proceeded by the proper method to subject this land to the lien of his judgment. It is well settled
In the three cases last cited the vendees in the security deeds were still creditors of their vendors; and were not asserting absolute title in hostility to the rights of other creditors who, subsequently to the execution of the security deeds, had obtained judgments against the vendors therein. Under such circumstances the subsequent judgment creditors should be required to pay off the secured debts before levying upon and selling the property embraced in the security deeds. The secured creditors should not be forced into litigation when the subsequent judgment creditors could pay their claims, and then levy upon and sell the lands conveyed by the security deeds. Thus the subsequent judgment creditors had an ample and complete remedy at law by which they could bring to sale the lands embraced in the security deeds involved in the cases cited. This being so, a' resort to equity to
Under the facts of this case, we think the true rule is this: “Where a creditor holds an absolute deed as security for a debt, with his bond to reconvey outstanding, and, upon the debtor after-wards becoming insolvent,, he takes the property in payment of the debt, the value being, largely in excess of the amount of the debt, other creditors may have the property administered in equity as the assets of an insolvent, and the proceeds applied first to the secured debt, and the surplus to their own claims. This may be done without -first tendering to the secured creditor payment of his claim.” Pool v. Gramling, 88 Ga. 653 (7) (16 S. E. 52).
So we are of the opinion that the trial judge did not err in the instructions given by him to the jury, of which claimant complains; and that the verdict is supported by the evidence.
Judgment affirmed.