35 Ga. App. 631 | Ga. Ct. App. | 1926
This case is controlled in every material respect, save one, by the decision this day rendered in the case of Neal v. Harber, No. 17119, ante, 626. The instant case was a suit by Harber’s executors on the $10,000 note referred to in the statement of facts in that case. The plaintiffs sought to set up a special lien on 250 acres of land deeded by Neal to Harber to secure the note sued on, the defendant administratrix resisting the establishment of such lien by attempting to set up that the inadequate description of the 250 acres rendered that deed void for uncertainty. This defense was stricken on motion. Plaintiffs below also sought to set up a special lien on the 93 acres referred to in the other case, by virtue of a purported transfer of the bond for title given by Harber to Neal in the $1,000 transaction back to the “estate of G. W. D. Harber.” The effort to set up a special lien on the 93 acres was resisted, not only on the ground that the alleged inadequate description of the 93 acres rendered the bond void, but for the additional reason that the purported assignment to the “estate of G. W. D. Harber” was on its face utterly null and void. This latter contention constitutes the only question not controlled by the adjudication made in the other case referred to. While, as adjudicated in that case, the grantor and his administrator would be estopped from attacking their own conveyance by setting up an alleged infirmity such as would-defeat the bona fide purposes of its execution, such rule would not prevent the grantor or his administrator from denying its bona fide execution, nor would it prevent them from setting up the entire absence of any legal transfer of the bond. It being absolutely essential to such a conveyance or transfer that there shall be a person in esse to whom the conveyance is made or to whom the bond is assigned, and the purported assignee in the instant case not being such, the alleged transfer is absolutely null and void, and the defendant was entitled to resist a legal proceeding founded thereon. Davis v. Hollings
Judgment affirmed, with direction.