114 Ga. 702 | Ga. | 1902
It appears from the record, that C. E. Weeks and C. H. Cook executed and delivered to the Home Mutual Building and Loan Association a deed to certain lots in the town of Helena, in Telfair county, to secure a loan of $800, for which they gave the association their bond, it, at the same time, executing to them a bond to reconvey the land to them upon the payment of the loan. The loan not being paid at maturity, the association brought suit against Weeks and Cook upon their bond, and obtained judgment thereon, which was general against the defendants and also special against the land described in the security deed. Execution issued, which followed the judgment. This execution was levied upon the land described therein, which was, at the sheriff’s sale, bid in by C. B. Parker, for the sum of $70, the sheriff executing to him a deed to the property Parker afterwards sold and conveyed the land to
According to numerous decisions of this court, the sheriff’s sale under which Parker bought was absolutely void, because the Building and Loan Association, the grantee in the security deed, had never- made a reconveyance of the property to the grantors, Weeks and Cook. Ashley v. Cook, 109 Ga. 653, and cases cited. The fact that the association had sued Weeks and Cook on the bond secured by the deed, and obtained judgment thereon, is no reason why the association should not recover the property conveyed to it as security. To revest the title in Weeks and Cook it would be essential that the suit and judgment should be followed by a reconveyance, levy and sale, or the debt paid and the security deed cancelled as provided by law. Ashley v. Cook, supra. The
The decision rendered by this court in Lynn v. New England Mortgage Security Co., 98 Ga. 442, is in accordance with this principle. There a deed was given as security for a debt, the grantee giving a bond to reconvey upon payment. The record shows that, upon failure of payment at maturity, the grantee reconveyed to the grantor the property described in the security deed, and then sued out an attachment, which was levied thereon. Judgment was after-wards rendered in the attachment proceedings against a lot of land other than that described in the security deed, the judgment, in this respect, following the declaration in attachment. Upon this judgment execution issued, which appeared on its face to be general and then special against the lot of land .described in the declaration and judgment. This execution was levied on the lot of land described in the security deed, which had been levied on under the attachment, and the same was sold at sheriff’s sale, and the purchasers at this sale sold the land to Lynn, against whom ejectment was brought for its recovery by the New England Mortgage Security Co., which owned the note and to which the grantee in the original security deed had conveyed the property sold. The plaintiff in that case sought to recover upon the ground that the sheriffs sale was void, because of the defective judgment. This court, evidently proceeding upon the presumption that the Mortgage Security Co. intended to confer upon its attorney authority to take such proceedings against its debtor as he might consider proper to enforce the collection of the debt, even though they might prove to be unwarranted by the law, held: “ A plaintiff who causes, under an execution in his favor, a sale of property by an officer authorized to sell, is, as against a bona fide purchaser at such sale (except for the purpose of maintaining a petition to set the sale aside, founded upon facts equitably entitling him to such relief), estopped to deny either the validity of the process, the regularity of its issue, or the lawfulness of the sale.” We do not think the ruling made in this case, or that made in Jones v. Lamon, supra, controls the case now
Judgment affirmed.