128 Ga. 306 | Ga. | 1907
Lead Opinion
(After stating the foregoing facts.)
But it was claimed by the defendant, Williams, that he was a bona fide purchaser for value, without notice of the plaintiff’s, equitable title. If he were such, he would be protected, and the plaintiff could not recover. Civil Code, §3934. The facts, therefore, lead to the inquiry, was Williams such a purchaser? The evidence is undisputed that he paid value. There is no evidence that the amount was not full value. Proof of such pajonent, in the absence of proof of notice, or of -any fact sufficient in law to charge notice, or sufficient to put the purchaser upon inquiry, will raise the presumption that his purchase was without notice, and the onus will be upon the one asserting an equity in the property to prove notice thereof to such purchaser. See, in this connection, Johnson v. Neal, 67 Ga. 528, where it is said: “Proof that a purchaser bought for value from the defendant in fi. fa. raises a presumption of good faith; and if it is desired to rebut this presumption by proof of actual notice of the judgment, the onus of
In order to prove that Williams at the time of his purchase had notice of the plaintiff’s equity, the plaintiff offered the testimony of several witnesses to the effect that they had informed Williams of certain “rumors” concerning the title; but in no instance does it appear that the alleged rumors bore any relation to the claim which is now asserted by the plaintiff. In that respect the record is silent. With the exception of one instance, it is not clear from the testimony of any witness that the rumors alluded to were communicated to Williams prior to the time of his purchase. In. one instance, however (see testimony of A. A. Walker), it does, affirmatively appear that Williams was told before he purchased that “the title was bad.” Further than this, the record of this witness’s testimony is likewise silent, and does not connect the criticism of Walker’s title with the claim asserted by the plaintiff. In the absence of further statements to Williams upon this subject calling attention more specifically to the title which is now asserted by the plaintiff, the mere general statement that the title was; bad was not sufficient to charge Williams with notice of the plaintiff’s equitable title. The title may have been bad in some other respect. If so, that would be of no concern' to the plaintiff in this case. The question is not whether Williams knew of some.
. If the testimony of the witnesses was not sufficient to affect Williams with notice, what else does the record disclose tending to suclr a conclusion? It appears that the junior-deed which Eaines executed, to wit, the deed from Eaines to Euth D. Walker and Eitie Anna Walker and Lena A. Walker, and under which the plaintiff claims, recites the substance of a certain petition to the , superior court by W. E'. Walker and the judgment entered thereon, bóíh of which were duly filed in the office of the clerk of the superior court. The petition and order' clearly and fully set forth the: plaintiff’s interest in the'property, and the recitals of the petition in the deed referred’ to, if Williams knew of that deed, were sufficient, to impart notice' of the plaintiff’s equitable title. This tleéd was' executéd' in"1.893, before Williams'purchased in 1901. Ifi,Williams had notice-'either of this deed or of the proceedings ini théi superior' court, such notice'would be sufficient to charge him withriaotice'of the plaintiff’s equitable'title. There is no evidence,
Judgment reversed.
Concurrence Opinion
concurring specially. I concur in the result, but not in all the reasoning of the majority opinion. I think the court-