92 Ga. 796 | Ga. | 1894
The controlling question upon which this case depends has been settled, we think, by the decision of this
Again, in Groves, ordinary, v. Williams, 69 Ga. 614, it was held that an absolute deed, though made only as security for a debt, passed title, and that a judgment subsequently rendered against the grantor had no lien on the land which could be enforced by levy and sale until the title became revested by redemption. Justice Speer stated that while, under the facts disclosed by the record in that case, the property was not subject, the court did not intend to say the plaintiff would be remediless in equity; but, of course, it was meant that in order to obtain equitable relief, facts must be shown which would entitle the plaintiff in execution to relief in that forum.
In the present case, we do not think the plaintiff has alleged such facts. No reason whatever is stated in the petition why Swift cannot redeem the land by paying off the debt to secure which Mrs. Lucas made the deed to Hollingsworth; nor does the petition show that a tender of the amount due has been made by Swift and refused by Hollingsworth, or that Swift is unable, from poverty or from any other cause, to make such tender. It therefore does not appear that he has not a complete
If Swift should pursue the course above indicated, the note would, of course, become his property, and he would be subrogated to all the rights of Hollingsworth, and hold the title to the land as security for the payment of the note, just as Hollingsworth did. It would seem from the allegations of the petition that this note has not been reduced to judgment. After becoming the owner of it, Swift could obtain judgment upon it, and then, by executing and filing a deed conveying the land to Mrs. Lucas, he would be in a position to enforce by levy, not only the judgment last referred to, but also the one he now holds. By advancing Hollingsworth the money due him by Mrs. Lucas, and taking a transfer of her note, and also taking title to the land, Swift would not only be subrogated to Hollingsworth’s rights, as above stated, but would also have to assume his corresponding obligations, and consequently it would become his duty to comply with the terms of Hollingsworth’s bond to Mrs. Lucas, and make her a title to the land in the event she should voluntarily pay off the note. In case she failed to do so, and Swift should obtain a judgment against her on the note, and sell the land in the manner above indicated, it would obviously result in a satisfaction of the bond. Therefore, whether Mrs. Lucas voluntarily paid the note given by her to Hollingsworth, or was compelled to do so by suit, her rights would be fully protected.
The question arises how Hollingsworth would be protected if, after accepting a tender by Swift of the amount due by Mrs. Lucas and making him an absolute conveyance of the land, Swift should fail to comply with the terms of Hollingsworth’s bond upon payment by
If Hollingsworth had already obtained judgment against Mrs. Lucas upon her note, and Swift were to pay him the amount due upon the same, Hollingsworth ought, perhaps, to be called upon by Swift to make and file a deed conveying the land to Mrs. Lucas, and at the same time to transfer and assign his execution against her to Swift, who could then proceed to collect both his executions by a levy and sale of the land as the property of Mrs. Lucas.
Hpon the whole, we are satisfied that Swift has not shown by the allegations of his petition that he is in a
An examination of the cases of Parrott v. Baker, 82 Ga. 364, and Polhill v. Brown, 84 Ga. 338, cited by counsel for the plaintiff in error, will show that they are not at all applicable to the facts of the case at bar.
The court was right in sustaining the demurrer to the petition. Judgment affirmed.