2 Ga. App. 421 | Ga. Ct. App. | 1907
In March, 1902, Finch, for the consideration of $1,000, sold to Smith & Tomlin all of the timber on certain lots of land, together with sawmill privileges, including right of ingress and egress; but limited the time within which the timber was to be cut and the privileges exercised to two years from date. The instrument of conveyance contained no clause of warranty.' As a part of the transaction Smith’ & Tomlin gave promissory notes for the purchase-money of the timber. In September, 1902, Smith & Tomlin transferred their conveyance to McLendon Brothers, and Finch took the notes of the latter partnership in lieu of the notes of the former. .Afterwards the partnership of McLendon Brothers & Smith, composed of the same persons as the partnership McLendon Brothers with the addition of Smith, acquired the conveyance; but the record is silent as to just how this was done. In May, 1903, the East & West Railroad Company sought to condemn a right of way through the lands on which the timber stood; and, to avoid the statutory proceedings, Finch, in consideration of $800, executed and delivered to the railroad company a warranty deed to the strip of land squght as a right of. way, and made no exception as to the timber. At the time this conveyance was executed McLendon Brothers & Smith were in possession of the timber and were actually engaged in cutting it. The railroad company proceeded to open and grade its right of way, and, in addi
Further, as to the plea of failure of consideration, let us inquire as to what was the consideration of the notes. It was the execution of the timber conveyance by Finch and the passage of the title to the timber from him to his grantees. Has this consideration failed in any respect? It is not insisted that the conveyance was .not executed, or that the title did not pass. The title did pass, and it is not shown to have failed in the slightest degree; for when it came into conflict with the railroad Compaq’s subsequent deed, it prevailed and damages were recovered for an invasion of it. There was therefore no failure of consideration.
We do not mean to say that a vendor may not become responsible to his vendee by the execution of a second deed covering the same property, even though the first conveyance be by quitclaim only. One “who fraudulently makes a second deed of conveyance to any land or real estate” is not only guilty of a crime (Penal Code, § 669), but commits an actionable wrong against the person injured. In this case, if Finch, having conveyed the timber to the defendants, although by only a quitclaim deed, had deeded the land, not omitting the timber, to the railroad company and it had taken as a purchaser without notice, the defendants would have had a'cause of action against him; but it would have sounded in tort, and not ex contractu. The plaintiff’s action upon the notes being purely ex contractu, the defendants could not set off against it a cause of, action arising in their favor from the plaintiff’s having made, even though fraudulently and tortiously, and to their damage, a'second deed; for a cause of action arising ex delicto can not be set off against an action ex contractu. Civil Code, § 4944; McLeroy v. Sewell, 73 Ga. 659.
The verdict directed by the court was the only legal result of the case. Judgment affirmed.