66 Ga. 704 | Ga. | 1881
On the 1st day of February, 1872, Wiley W. Thaxton made an absolute deed conveying to L. T. Roberts a certain piece of land which is the subject matter of this litigation, and Roberts gave bond to reconvey the premises upon the payment to him of the sum of six hundred and twenty-five dollars. This money was not paid at maturity, nor has it been paid since.
In January, 1873, Mrs. M. E. Thaxton, the wife of W. W. Thaxton, t-he grantor, filed her application for homestead in the land conveyed, which was resisted by Roberts before the ordinary, who granted the homestead over the objections, and he appealed.
In 1880, having obtained a judgment in ejectment for the land, his objections were withdrawn “before verdict or judgment in the case, with leave of the court,” and because of the said judgment he was no longer a creditor.
His action of ejectment had been returned to the March term, 1877, and in 1878 a verdict was rendered in his favor, and in March, 1880, a judgment 7umc pro tunc was ordered on the said verdict. A writ of possession having issued and being about to be enforced, Mrs. M. E. Thaxton, in behalf of herself and her three minor children, filed this bill setting up that the deed upon which the recovery in the ejectment suit was had, was void for usury; that the land had been set apart to her and her children as homestead both by the bankrupt court and the ordinary of Butts county; that there were defects in the service of the ejectment suit, as also in the judgment rendered thereon ; that Thaxton had been discharged in bankruptcy from all his debts; concluding with a prayer that the
The defendant answered the bill, denied the usury, claimed absolute title under his deed, an adjudication resulting in his favor in the ejectment suit, which was in conformity to law, and insisted upon the execution of his writ of possession.
Proofs were submitted in support, of the bill and'answer by the parties, and the chancellor, after argument had and considering the same, refused the injunction and ordered the writ of possession to proceed. That judgment under the facts aforesaid is the error alleged.
In the case of Keith vs. Ketchen, decided February term, 1880, not yet reported, it was held that, a purchaser of the equitable interest of such grantor stood in the same relation to the property that he did, and must pay the money before he can claim the land.
Judgment affirmed.