Bentley v. Phillips

• Decision Date: 13 November 1930
• Docket Number: No. 7787.,7787.
• Citation: 171 Ga. 866,156 S.E. 898
• Parties: BENTLEY. v. PHILLIPS.
• Court: Georgia Supreme Court

171 Ga. 866

156 S.E. 898

BENTLEY.

v.PHILLIPS.

No. 7787.

Supreme Court of Georgia.

Nov. 13, 1930.

Rehearing Denied Feb. 14, 1931.

Syllabus by the Court.

The statutory form of action for the recovery of land, known as the Jack Jones form, and embraced in Civil Code of 1882, § 3389, was not repealed by the Uniform Procedure Act of 1893, set out in the Civil Code of 1910, § 5539.

(a) The petition in this case was brought under this form, and under this form of action it is not necessary that the petition should expressly allege that the plaintiff has title to the land sought to be recovered. An allegation that the plaintiff "claims title" to the land is equivalent to an allegation that he has title thereto.

(b) The object of the abstract is not to show title in the plaintiff on the face of the pleadings, but only to give notice of what will be relied upon at the trial.

[Ed. Note.—For other definitions of "Claim of Title, " see Words and Phrases.]

Syllabus by the Court.

In case of a sale of land where a bond for title has been given by the vendor to the vendee, and the executor of the vendor has reduced the debt for the purchase money to judgment against the administratrix of the vendee, the executor of the vendor must execute to such administratrix a quitclaim deed to the realty embraced in the bond for title, and have the same recorded in the office of the clerk of the superior court, before the execution issuing upon the judgment can be levied upon such realty and the same sold under such levy; and a sale made under a levy before such conveyance is made and recorded is void, and passes no title to the purchaser.

Syllabus by the Court.

But where a sheriff's sale is made under such levy without such quitclaim deed being executed and recorded, and the purchaser at such sale sells to another under an executory contract of sale, the latter being put in possession with part of the purchase money paid, and the vendor of the latter tenders to him a good and sufficient deed with warranty of title, the purchaser under such vendor is put to his election either to pay the purchase money or surrender the premises to the vendor; and in these circumstances such purchaser cannot defeat an action of ejectment brought by his vendor to recover the premises, by showing want of title in his vendor. Aliter, if one was not holding under the purchaser at such void sheriff's sale.

Syllabus by the Court.

The issue whether the defendant bought from the Bank of Tallapoosa through Heaton, or from Heaton in his individual right, should have been submitted to the jury under proper instructions for determination; but, as Heaton was sworn as a witness and testified that the parol sale-of this land to the defendant was made by him for the bank and not in his own right, a new trial will not be granted if Heaton will, within ten days from the filing of the remittitur in the court below, execute and deliver to the defendant his quitclaim deed to the premises and a renunciation of all claim to the balance due. by the defendant on the purchase money thereof; but, upon failure of Ilea ton to execute and deliver such deed, a new trial is granted.

Syllabus by the Court.

Where a verdict finds an aggregate sum of principal and interest and does not specifically segregate the two, it is defective, and generally a new trial will be granted; but, it appearing from the record in this case that the verdict should have been for the principal sum of $600 and for the sum of $495.20 interest to date of verdict, we direct that the verdict be so amended as to be for these respective amounts, that the principal sum alone bear interest from the date of the verdict, and that the defendant, the plaintiff not objecting to this arrangement as found by the jury, shall make the five annual payments as provided by the verdict, each annual payment to include one-fifth of the principal and interest, with interest on the principal of each annual installment from the date of the verdict.

Error from Superior Court, Haralson County; Price Edwards, Judge.

Action by Clem Phillips against J. L. Bent-ley. Judgment for plaintiff, defendant's motion for new trial was overruled, and defendant brings error.

Affirmed conditionally and with directions.

Clem Phillips filed his complaint against J. L. Bentley, and made these allegations: Bentley is in possession of a described tract of land containing 46 acres, to which petitioner claims title. The annual mesne profits thereof are $200. Defendant refuses to surrender to him possession of this land, although plaintiff has made demand for the same; defendant claiming that he purchased the land from W. W. Heaton in 1918 under a parol contract, made certain payments on the purchase money thereof, and erected valuable improvements thereon, and insisting that plaintiff pay him for said improvements and take the land. Plaintiff assured him, and now alleges, that in 1918 the Bank of Tallapoosa acquired said land from the estate of T. N. Sumner under a deed from G. B. Rich ards, sheriff, who seized and sold it under an execution in favor of R. Robertson, as the executor of M. A. McCorkle, against Agnes Millsaps, administratrix of the estate of T. N. Sumner, when said bank purchased the land for $4,515; that the bank then, through W. W. Heaton, sold to defendant that portion of the land claimed by petitioner and in possession of defendant, for $25 an acre, said portion being fully described in the petition; that the bank then made other conveyances of said tract to sundry purchasers, in all of which conveyances it was recited that the land thereby conveyed was sold subject to the rights of defendant, which fact is well known to him; that petitioner assured defendant that he would give him credit for such sums as he had paid said bank upon the purchase money of the tract in dispute; that he would receive the balance of the purchase money which the defendant admitted was due with interest and execute to defendant a good and sufficient title in fee simple; that defendant refuses to pay said balance or deliver said land; that he is insolvent, is reaping the benefit of said land of the annual value of $200, refuses to make any payment on the purchase money according to his contract, and is running said land down in value; that there are some buildings thereon of great value, which are uninsured, the same having been erected by defendant, and being about of equal value to the timber taken from said land by defendant; that irreparable injuries will be done him unless the court appoint a receiver to take charge of the land, insure the buildings, and collect the rents pending this litigation; and that said land is now of less value than defendant's debt thereupon. Plaintiff prayed for decree of title, for judgment for mesne profits at $200 per year, for receiver, etc.

Attached to the petition, but not referred to therein or made a part of the petition, is an abstract of title. It is alleged therein that "petitioner claims title to said land under the following chain of titles": (a) Possession of this and other lands of which this is a part in M. A. McCorkle and his vendee, T. N. Sumner, under bond for title for more than twenty years prior to January 1, 1918. (b) Deed from G. B. Richards, sheriff, to Bank of Tallapoosa, dated January 1, 1918, reciting that the premises were "levied upon and sold by said sheriff as the property of the estate of T. N. Sumner (title having been placed in him by the executor of M. A. McCorkle for the purpose of levy and sale on

the —— day of ——, 1918)." (c) Deed from said bank to W. S. Franklin, dated December 20, 1920, conveying an undivided half interest in the tract conveyed by the deed in the last link, (c-1) Deed from W. S. Franklin to R. L. Culbreath, dated December 30.

1920, conveying said half interest. (c-2) Deed from R. L. Culbreath to Otie~ S. Phillips, dated October 15, 1927, conveying said half interest, (c-3) Deed from said Phillips to petitioner, dated January 28, 1928, conveying said half interest, (d) Deed from the Bank of Tallapoosa, by A. B. Mobley, superintendent of banks, to petitioner, dated October 8, 1926, conveying the other half interest in said property, (d-1) Deed from petitioner to Inez Heaton, dated October 13, 1920, conveying this half interest, (d-2) Deed from Inez Heaton to petitioner, dated December 20, 192S, conveying this half interest. The abstract contains this recital: "All of said deeds are made with reference to the contract between W. W. Heaton and the defendant and subject thereto."

The defendant demurred to the petition upon the ground that it set forth no cause of action, because: (1) It is not alleged that plaintiff has title to the property described, the abstract of title attached thereto not being referred to in the petition or in any wise made a part thereof except by attaching the same to the petition, and because the abstract itself shows a want of legal title in plaintiff to the property described in the petition. (2) While the petition recognizes that whatever rights the plaintiff has in the premises in dispute were acquired subject to the rights of the defendant under his purchase therein referred to, it does not appear that plaintiff has the right to receive the purchase money due by the defendant under his contract of purchase, if there be any due by him, nor is it alleged that there is any amount due under said contract of purchase. (3) The plaintiff is attempting to abrogate a contract of purchase by the defendant of the premises in dispute, without offering to restore the status or to account to him for the purchase money paid and the improvements placed on the premises by defendant. The court overruled the demurrer, and the defendant excepted. Subject to his demurrer, the defendant filed his answer in which he admits that he is in possession of the land in dispute, but denies that the annual rental of said land is $200, and that the plaintiff ever made any demand on him for...