Clark v. Warren

CourtSupreme Court of Georgia
Citation55 Ga. 575
Decision Date31 January 1876
PartiesChester M. Clark, administrator, plaintiff in error. v. James W. Warren, defendant in error.

Equity. Mortgage. Vendor and purchaser. Contribution. Before Judge Harris. Calhoun Superior Court. September Term, 1875.

Reported in the decision.

Strozer & Smith; Lyon & Butler, for plaintiff in error.

Vason & Davis; R. N. Ely, for defendant.

Warner, Chief Justice.

This was a bill filed by the complainant, as the administrator of Wilkinson, against the defendant, in the year 1860, alleging that in the year 1848 complainant's intestate, and one Spicer, purchased from the Messrs. Costers, several described lots of land, for which they executed their joint and several promissory notes, to secure the payment of which, they, on the 6th of December, 1848, executed a mortgage on the land so purchased, to the Costers. Subsequently, on the 29th of December, 1849, Wilkinson and Spicer, by agreement, divided *the land between them, each executing a quit claim deed to the other for their respective shares thereof; that in the year 1856 Spicer departed this life insolvent, and his estate is unrepresented, leaving, at the time of his death, two of the notes so given as aforesaid to the Costers for the land secured by the mortgage thereon, unpaid; that Wilkinson died, and the complainant, as his administrator, was compelled not only to pay his intestate's share of said notes but was also compelled to pay Spicer's share thereof, his intestate being a joint and several promissor thereon, and did pay the same, amounting to the sum of $2,686 45, on the 5th day of December, 1859. The complainant also alleges, that after the partition of the lands between Wilkinson and Spicer, Spicer sold and conveyed his share thereof to the defendant, Warren, who went into the possession thereof and still occupies the same; the time of this sale is not alleged in complainant's bill, but is stated in the defendant's answer to have been in the spring of 1853.

The complainant alleges that the defendant, Warren, had notice of the mortgage on the land to the Costers, at the time he purchased it from Spicer, and insists that the land in his hands is chargeable with the amount which he has paid to the Costers for Spicer's share of the money due on the notes given bv Wilkinson and Spicer for the land, the payment of which was secured by the mortgage thereon. The prayer of the bill is, that the land may be sold and so much of the proceeds thereof as may be necessary, be applied to the extinguishment of the amount paid by the complainant to the Costers for Spicer, and the surplus, if any, paid to the defendant, and for such other relief as the nature of his case may require, according to equity and good conscience.

The defendant, in his answer, admits that he purchased the land from Spicer in the spring of 1853 for the sum of $10,000, and has paid for the same; defendant also admits that he had constructive but not actual notice of the mortgage on the land to the Costers, at the time of his purchase, but had at the sametime notice that the mortgage debt was the joint debt of *Spicer and Wilkinson, and that the estate of the latter was...

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4 cases
  • Featherstone v. Emerson
    • United States
    • Utah Supreme Court
    • 22 Julio 1896
    ... ... the conveyance is expressed to be for the purchase money of ... the land is none the less a waiver of his vendor's ... lien." Avery v. Clark, 87 Cal. 619; Baum v ... Grigsby, 21 Cal. 173; Camden v. Vail, 23 Cal ... 633; Gaylord v. Knapp, 15 Hun. (N.Y.) 87; Pease ... v. Kelly, ... §§ 306, 308, 321, 446; ... 2 Warv. Vend. §§ 736, 737; Grubbs v ... Wysors , 73 Va. 127, 32 Gratt. 127; Clark v ... Warren , 55 Ga. 575 ... The ... equity of Mrs. Page for the unpaid purchase-money mortgage of ... $ 800 is therefore superior to the equities ... ...
  • Dowdy v. Blake
    • United States
    • Arkansas Supreme Court
    • 28 Enero 1888
    ...disposed of. 4. The second does not present a case in which appellee can be subrogated to the rights of the original vendor. 14 Ill. 468; 55 Ga. 575; 4 Ark. 286. Blake and Todd were jointly and severally liable; and if one paid more than the other it created no lien in his favor; it merely ......
  • Dowdy v. Blake
    • United States
    • Arkansas Supreme Court
    • 28 Enero 1888
    ...Todd's share. Blake's obligation to discharge the incumbrance was not altered by the substitution of Dowdy for Todd. The case of Clark v. Warren, 55 Ga. 575, is relied upon by the appellant to sustain the position that one co-purchaser is morally and equitably bound to pay off and discharge......
  • Varner v. Varner
    • United States
    • Georgia Supreme Court
    • 31 Enero 1876

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