Ashley v. Cook
| Decision Date | 30 January 1900 |
| Citation | 35 S.E. 89,109 Ga. 653 |
| Parties | ASHLEY et al. v. COOK. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. A deed passing title to the grantee therein named, for the purpose of securing a debt, can, after the maturity of the debt, be set up as outstanding title to defeat an action of ejectment brought by one claiming under the grantor, if the possession of the defendant is connected with such title.
2. A purchaser at a void judicial sale, had in pursuance of a judgment setting up a special lien under the provisions of a security deed, is subrogated to whatever rights the holder of the security deed would have had, had he acquired possession under his deed. While this doctrine would not be applicable in a case where there were no equitable pleadings invoking it for the purpose of determining the exact equities between the parties, still the fact that it could be made available for this purpose by proper pleadings is sufficient to connect the claim upon which the possession of such purchaser rests with the security deed, in such a way as to authorize him to set up the same to defeat an action of ejectment brought against him by one claiming under the grantor therein.
3. The record of suit in which a decree is rendered establishing a copy of a lost deed, and declaring that the same is established subject to the judgment and claim of one holding a security deed to the property from the same grantor, will not prevent the grantees in the lost deed, who are not parties, from using the same as evidence of their title, and at the same time attacking a sale thereafter had under the judgment rendered in favor of the holder of the security deed on the ground that no reconveyance was made before the levy when there is nothing in the pleadings or decree to show that it was intended that the decree should have the effect of dispensing with such reconveyance.
4. Though the failure of the grantor in a security deed, who is present at a sale under judicial process of the property therein embraced, to object thereto, may estop him from afterwards calling in question the regularity or legality of the sale, this will not preclude the owners of the equity of redemption in the property from so doing, when their right to such equity arose out of a deed from such grantor antedating the security deed, but becoming inferior thereto on account of a failure to record.
5. In the present case the defendant did not, under the sheriff's sale, become the absolute owner of the property in controversy; being thereby simply subrogated to the rights of the holder of the security deed. What are the equities of the parties in the property, as against each other, are not determined in the present case.
Error from superior court, Laurens county; John C. Hart, Judge.
Action by J. H. Ashley and others against W. J. Cook. Judgment for defendant, and plaintiffs bring error. Affirmed.
John M Stubbs, Anderson, Felder & Davis, F. H. Burch, D. M. Roberts and Alexander Akerman, for plaintiffs in error.
J. K. Hines and T. L. Griner, for defendant in error.
This was an action of ejectment brought by J. H. Ashley, Augustus Ashley, Lula Kreutz, and J. M. Ashley against W. J. Cook. The plaintiffs claimed under a deed from P. A. Ashley, executed in 1884, conveying the property in dispute to his wife, Kate Ashley, during her life, with remainder to her children. This deed was never recorded. Kate Ashley is dead, and the plaintiffs are her children. The defendant introduced in evidence a deed from P. A. Ashley to Mary L. Floyd Jones, dated April 13, 1885, conveying the property in controversy, and reciting that it was executed, under section 1969 of the Code of 1882 (section 2771, Civ. Code), to secure a debt which the grantor owed the grantee. This deed was duly recorded, and was accepted by the grantee without any knowledge of the prior execution of the deed above mentioned. At the time the security deed was executed, the grantee therein made to the grantor a bond to reconvey the land upon payment of the debt. The debt was not paid at maturity, and the creditor, having obtained judgment without having executed any reconveyance, caused the execution to be levied on the property now in dispute. At a sale of the property had pursuant to this levy, the property was bought by Cook, the defendant in this action, and the amount paid by him credited upon the execution. The judge directed a verdict in favor of the defendant, and the only question presented by the bill of exceptions sued out by the plaintiffs, in such a way that we can deal with the same, is whether or not he erred in so doing.
1. It was contended in the argument here that, although the defendant failed to prove title in himself, the deed from Ashley to Mrs. Jones constituted an outstanding, paramount title in Mrs. Jones, and that the court was therefore right in directing a verdict for the defendant.
According to the universally recognized rule of law, a plaintiff in ejectment must recover on the strength of his own title, and not on the weakness of his adversary's; and, hence, to defeat a recovery by the plaintiffs in the present case, it was only necessary for the defendant to show an outstanding title in some person other than the plaintiffs which was superior to that under which they claimed. Sutton v. McLeod, 29 Ga. 589; Fletcher v. Perry, 97 Ga. 369, 23 S.E. 824. To accomplish this purpose, he introduced in evidence the security deed above referred to. It therefore becomes necessary to determine whether or not this security deed is such an outstanding title as will defeat a recovery by the plaintiffs. The sheriff's sale under which Cook bought was absolutely void, because the grantee in the security deed had never made a reconveyance of the property to the grantor. Upchurch v. Lewis, 53 Ga. 621; Bank v. Danforth, 80 Ga. 55, 7 S.E. 546 (Syl., point 6); McCalla v. Mortgage Co., 90 Ga. 113, 15 S.E. 687 (Syl., point 5). But, as Cook was in possession under a claim of right, he cannot be properly regarded as a mere intruder, and hence the doctrine that such a person cannot defeat an action of ejectment by showing outstanding paramount title in a stranger has no application whatever to him. See Tyler, Ej. P. 564; Newell, Ej. P. 654; Sutton v. McLeod, 29 Ga. 589; Fletcher v. Perry, 97 Ga. 369, 23 S.E. 824. In reference to the character of title necessary to support the defense of "outstanding title" in an action of ejectment, the author last cited says: "It is incumbent on the defendant, if he relies upon an outstanding title for the purpose of defeating the action, to positively and clearly establish such title, as an actual, subsisting, and better title than the plaintiff's title,--such a title as would enable the third party himself to maintain an action for the possession of the lands in controversy against both the plaintiff and the defendant." Newell, Ej. p. 653, § 15, and cases cited. See, also, Industrial Co. v. Schultz, 43 W.Va. 470, 27 S.E. 255; Reusens v. Lawson, 91 Va. 226, 21 S.E. 347; Wilcher v. Robertson, 78 Va. 602; Griffith's Lessee v. Bradshaw, 4 Wash. C. C. 171, Fed. Cas. No. 5,821. A deed made to secure a debt passes title. Williamson v. Insurance Co., 100 Ga. 791, 28 S.E. 914, and cases cited. It has been held repeatedly by this court that a recovery in ejectment may be had upon such a deed. Carswell v. Hartridge, 55 Ga. 412; Biggers v. Bird, Id. 650; Cameron v. Phillips, 60 Ga. 434; Woodson v. Veal, Id. 562; Robinson v. Alexander, 65 Ga. 406; Oellrich v. Railroad, 73 Ga. 389. It is true that the statute (Civ. Code, § 5432) gives another remedy (that is, to obtain a judgment on the debt, reconvey to the grantor, levy on and sell the land), but the remedy thus given is by no means exclusive. Dykes v. McVay, 67 Ga. 502; Hines v. Rutherford, Id. 607. There are also numerous decisions to the effect that a judgment against the grantor in a security deed executed before such judgment was rendered had no lien upon the land embraced in the deed, which could be enforced by levy and sale, until the title became revested by redemption. Phinizy v. Clark, 62 Ga. 623; Cecil v. Gazan, 65 Ga. 689; Groves v. Williams, Id. 614; Osborne v. Hill, 91 Ga. 137, 16 S.E. 965.
Mrs. Jones could, certainly, after a default in payment by the grantor, maintain ejectment on this deed against him, or any one else who was in possession. The fact that the property was sold by the sheriff, and a sum of money equal to the larger portion of her debt credited on her execution, would not have the effect of destroying the title which she held, not of transmitting the same back to the grantor, and therefore would not, at law, be a sufficient defense in an action of ejectment brought by her. Indeed, a partial payment of the debt by the grantor himself would be no defense to such an action brought against him. Robinson v. Alexander, 65 Ga. 406. When a security deed is executed and delivered, the legal title to the property therein described vests in the grantee, and remains there until the debt is paid, and the security deed canceled in the manner prescribed by law for the cancellation of mortgages (section 2774, Civ. Code), or a reconveyance is made by the grantee to the grantor, or there has been a judgment recovered on the debt, a reconveyance filed and recorded, and a sale made by the sheriff under a lawful and regular levy. Until one or the other of the methods above mentioned is pursued, the legal title remains in the grantee in the security deed. The fact that the grantee had sued the grantor on the debt, and obtained judgment thereon, would not of itself revest the title; it being essential, to accomplish such purpose, that the suit and judgment should be followed by a reconveyance, levy, and sale.
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