219 Ga. 149 | Ga. | 1963
The petition in two counts alleges a sales and purchase contract between plaintiff Seay and defendant Stubbs as agent for defendant Malone, the contract providing that Stubbs agrees to sell and Seay agrees to purchase a certain described tract of land for $11,100, Seay to pay for the same in 74 notes of $150 each, the first note payable on August 14, 1961, and one note payable on the 14th day of each month thereafter until all notes are paid, each note bearing interest at 7 percent per annum from maturity until paid,
2. Actual possession of land is notice of whatever right or title the occupant has. Code § 85-408; Mercer v. Morgan, 136 Ga. 632 (2) (71 SE 1075); Berry v. Williams, 141 Ga. 642 (2) (81 SE 881); Waller v. Dunn, 151 Ga. 181 (2) (106 SE 93); Simpson v. Ray, 180 Ga. 395 (2) (1-78 SE 726); Denson v. Denson, 214 Ga, 8, 10 (102 SE2d 605). Where A contracts for the sale of land to B and subsequently thereto conveys the land to C who has knowledge of the prior sale, C takes subject to all the equity existing between A and B. Jordan v. Rhodes, 24 Ga. 478; Copelin v. Williams, 152 Ga. 692 (3) (111 SE 186). As the allegations are sufficient to show that Dye, the pur- - -chaser from Stubbs, had knowledge and notice of Seay’s claim ' to the land, and that the time of the essence provision of the contract was waived, count 1 of the amended petition states a cause of action to subject Dye’s rights to those of Seay under the contract and the trial court erred in sustaining a general demurrer to count 1 and dismissing it.
3. The trial court did not err in sustaining a general demurrer to count 2 and dismissing it. As a necessary step toward recovering the money judgment sought in count 2 for the difference between the loan plus interest and the price for which Stubbs sold the land to Dye, plaintiff would have to show by parol evidence that the contract was intended by the parties not as a true sale, but as security for a loan, as the contract does not show on its face, nor does the absolute deed, that a loan was involved or the amount thereof. “A deed or bill of sale, absolute on its face and accompanied with possession of the property, shall not be proved, at the instance of the parties, by parol evidence to be a mortgage only, unless fraud in ' its procurement shall be the issue to be tried.” Code § 67-104. Having quit possession before bringing this suit, plaintiff will not be permitted to prove, no fraud in the procurement being alleged, that the contract for sale of the property was intended by the parties as security for a loan by Malone to plaintiff.
Judgment affirmed in part; reversed in part.