120 Ga. 396 | Ga. | 1904
(After stating tbe foregoing facts.) It was held in an early ease that where land was sold, and the vendee held under bond for titles, with a portion of the purchase-money paid, both the vendor and the vendee had a leviable interest in the land, represented by the balance due on the purchase-money in the one instance, and by the purchase-money paid in the other; and that a purchaser at the sale would obtain such an interest in the land as would give him a right to call for the balance of the purchase-money, or to pay the balance of the purchase-money and demand a conveyance, according to whether the vendor’s or the vendee’s interest had been seized under the execution. See Wilkerson v. Burr, 10 Ga. 117, and cases cited in Van Epps’ annotations. In 1875 the General Assembly, recognizing the inconvenience incident to such sales, passed an act which provided that where any of the purchase-money had been paid, the entire interest stipulated in the bond might be seized and sold under an execution against the vendee, and the proceeds of the sale so appropriated as to discharge first the amount due on the purchase-money, and the balance distributed as the property of the vendee. Code of 1882, § 3586. This provision of the Code of 1882 was superseded by the act of 1894, providing for a levy upon and sale of property where the defendant in execution has an interest therein and does not hold the legal title (Acts 1894, p. 100). Green v. Hill, 101 Ga. 258. It was accordingly held, in the case just cited, that since the passage of the act of 1894, one holding land under a bond for titles had no leviable interest therein, without reference to whether any portion of the purchase-money was paid, until he became invested with the legal title to the land. See also Black v. Coffin Company, 115 Ga. 15. The section above cited was not carried into the Code of 1895, and the act of 1894 is now embraced within the provisions of the Civil Code, §§5432 — 5434. Such is the present state of the law in reference to the remedy to be pursued by the holder of a judgment lien against one who, as a purchaser, holds an interest in the land under a bond for titles.
The security deed first made its appearance in our law in 1871, and it would seem, upon principle, that the status of the parties to such a conveyance would have been the same as in the case of a vendor and vendee under a bond for titles, each having a leviable interest in the land, — the creditor to the extent of his debt, the
Let these principles be applied to the facts of the present case. At the date of the sheriff’s sale under the Hill execution the debt due the Bank of Washington had not been paid in full. The land had, therefore, not been redeemed. Isaac McLendon had no leviable interest therein, and Sims & Truitt, the purchasers, acquired no-title'to any interest in the land, and therefore no interest in the land passed to Mary McLendon under their deed. By the assignment of the execution of the bank against Isaac McLendon, Sims & Truitt became the owners of the debt then due to the bank, and by their assignment to Mary McLendon she became the owner of the debt against her husband, and acquired the right to collect whatever was the balance due on the same at the time of the transfer to her. While the judgment thus transferred to her has become dead, and can not be revived, and the debt upon which the judgment was based is long since barred, still, so far as the present record discloses, the balance due on the Bank of Washington debt at the time of the transfer of the execution to Mary McLendon has never been paid, either by Isaac McLendon, his heirs, his creditors, or any one else. There has, therefore,'been no redemption. The. title to the land is still vested in the Bank of Washington, and until this title becomes revested by payment of
Judgment on main bill of exceptions affirmed; cross-bill dismissed.