148 Ga. 123 | Ga. | 1918
D. W. Morgan, the owner of certain land situate in the county of DeKalb, contracted to sell the said land to J. H. Barfield, a resident of DeKalb county. He executed and delivered to Barfield his bond for title, conditioned to convey the land to Barfield upon the payment of the balance of the purchase-money evidenced by certain notes signed by Barfield and fully described in the bond for title. Thereafter J. H. Barfield for a valuable consideration transferred the bond for title and his equity in the land described therein to George E. Argard of Eulton county, “the said George E. Argard assuming the balance due on said property as specified in this bond for title.” Morgan was not a party to the contract. Default having been made in the payment of the purchase-money notes, Morgan filed his suit in equity in Eulton superior court against Argard and Barfield, alleging the foregoing facts so far as material to this inquiry. He prayed for a judgment against each of the defendants for the balance of the purchase-money due, for a special lien upon the land described in the bond for title, and for general relief. The defendants demurred to the petition, upon the ground that the same set forth no cause of action; that the superior court of Eulton county had no jurisdiction of the case as against the defendant Barfield, the maker of the notes, he being a resident of DeKalb county, and that there was no privity of contract between the defendant Argard and the plaintiff. The court sustained the demurrer as to the defendant Barfield and dismissed the petition as to him. The demurrer was overruled a£ to the defendant Argard, and he has no exception here. The plaintiff excepted to the judgment dismissing his petition as to the defendant Barfield. There were additional grounds of demurrer, special in nature; but inasmuch as the court did not deal with these, we will not consider them.
In the foregoing circumstances practically all of the American courts permit a suit at law or in equity by the vendor against the maker of the purchase-money notes and his vendee, either (1) upon the broad ground that if one person makes a promise upon a valuable consideration to another for the benefit of a third person,
The defendant in error relies upon the decision in Baker v. City National Bank, 94 Ga. 87 (21 S. E. 159). The second headnote in that case is as follows: “One who, upon the purchase of mortgaged property, contracts with the mortgagor to pay the mortgage debt, the mortgagee not being a party to the agreement, can not be treated by the mortgagee as a joint promissor with the mortgagor so as to render both of them subject to suit in the same action, legal or equitable, in the county' of the mortgagor’s residence, the purchaser being a resident of another county.” That was a suit in equity; but it was not a proceeding to enforce the lien of a mortgage, but to recover a general judgment against the mortgagor and his vendee, founded upon an alleged promise made to the mortgagor to pay the debt. In the present ease the primary object of the suit is to have a special lien declared upon the land, binding upon both the vendee and his transferee, and the land sold to satisfy the judgment. In the Balcer case the mortgagee
Judgment reversed.