13 Ga. App. 112 | Ga. Ct. App. | 1913
Peterson brought suit against Henry Harper for the br'eaeh of a bond for title. The court directed a verdict in favor of the defendant, and the plaintiff excepts. According to the evidence, the defendant executed to Stone on July 26, 1908, the bond for title which appears in the record, whereby he obligated himself to convey certain land to Stone or his assigns, upon the payment of two promissory notes therein specified, amounting to something over $300. The bond for title does not contain a stipulation to the effect that time is of the essence of the contract, or confer power
Since it appeared prima facie that there was -a breach of the bond for title, our inquiry must necessarily be confined to ascertaining whether the reasons given by Harper for actually disregarding his obligation are sufficient to relieve him from the' liability to which he was subjected prima facie when the plaintiff proved the execution and.assignment of the bond, and that Harper, as obligor,
Even if a written instrument, apart from the assignment and transfer of the bond for title had been introduced, it would not necessarily have relieved the defendant from liability to Peterson, for there is no evidence that at the time he executed the deed to L. C. Harper he had any reason to believe that his bond for title was not still outstanding (perhaps in the hands of an innocent purchaser of Stone’s equitable interest), and he neither inquired as to its whereabouts nor demanded its surrender as a condition precedent to the execution of this deed. He certainly knew, when he executed the deed to L. C. Harper, that he had given a bond for title to Stone, covering the same tract of land. He knew that he could not be required to give a deed in pursuance of that bond until it was surrendered, or until it was satisfactorily shown that he could not in any event be liable in future upon the obligation.
The maker of a bond for titles, wherein he binds himself to execute a deed to the obligee named in the bond upon the payment of certain notes, is not required to execute a deed in pursuance of his bond until the bond is surrendered, unless it is shown that the bond is lost or destroyed and can not afterwards be enforced against him. Hardin v. Neal Loan & Banking Co., 125 Ga. 820 (54 S. E. 755). The defendant seems to have recognized this principle, because there was testimony to the effect that Stone, the holder of the bond, agreed that he should execute the deed; but the judge could not direct a verdict upon this testimony, since it was contradictd by Stone; and .it was for the jury to say what was the truth as to this point. The facts of the instant case demonsrate the wisdom of the ruling of the Supreme Court in the Hardin case, supra; because, were any other rule adopted than that of requiring the maker of a bond for title to be certain that that obligation has
That the assignee of a bond for title acquires all the rights and equities to which the assignor was entitled thereunder is well settled. Walker v. Maddox, 105 Ga. 253 (2), 255 (31 S. E. 165); Burney Tailoring Co. v. Cuzzort, 132 Ga. 852 (65 S. E. 140). Therefore the bond for title, with the assignment entered thereon, entitled Peterson to recover if the jury believed the testimony of Stone that he did not consent for the defendant to execute the deed to L. C. Harper, and that in fact he had no knowledge of it.
The evidence is undisputed that Peterson had no actual knowledge, at the time of the transfer by Stone of the bond for title, that the defendant had executed a deed to L. C. Harper. It is insisted, however, that Stone knew, before he executed his assignment to Peterson, that the defendant had executed and delivered this deed; and, as the assignee of the bond could not get more than his assignor had, and as Stone had nothing, Peterson got nothing under