Calhoun v. Tullass

• Decision Date: 31 December 1866
• Citation: 35 Ga. 119
• Parties: JAMES M. CALHOUN, and others, plaintiffs in error. v. JAMES A. TULLASS, and others, defendants in error.
• Court: Georgia Supreme Court

35 Ga. 119

JAMES M. CALHOUN, and others, plaintiffs in error. v. JAMES A. TULLASS, and others, defendants in error.

Supreme Court of the State of Georgia

(Milledgeville, December Term, 1866.)

In Equity. In Catoosa Superior Court. Demurrer. Decided by Judge Milner. November Term, 1866.

This was a bill filed by Tullass and others, vendees of a certain settlement of land situate in Catoosa county, against *Nichols, of the State of Florida, their vendor; Calhoun, of the county of Fulton, a judgment creditor of Nichols; Paris, of the county of Dade, another judgment creditor of Nichols; and X. G., T. G. and C. D. McFarland, of the county of Walker, mortgagees of the same land, under said Nichols.

The case made by the bill was, in substance, as follows: On the tenth day of July, 1863, the complainants purchased said land from Nichols (who then resided in Catoosa county) at the price of $35,000.00 in Treasury notes of the Confederate States, and Nichols executed to them his deed of conveyance with warranty of title. Nichols was then indebted to a large amount. There were many judgments and executions against him, as well as several mortgages on the land. It was. a part of the contract that the vendees should proceed to take up the mortgages, judgments, executions and debts against Nichols, binding upon the land, to the amount of $35,000.00, if there should be so much; and if not, the remainder of the purchase money was to be paid to Nichols. But as it was unknown whether said debts were more or less than the purchase money, or whether the vendees, after paying the latter in full, would have a good and unincumbered title to the land, it was distinctly understood and agreed by and between the vendees, the vendor, and the mortgagees, that the vendees should take up the mortgages and executions, and hold the mortgages open as their property to save themselves from loss in the event it became necessary for their protection—that the money received by the mortgagees was not in payment of the mortgages, nor so to be, unless the vendees received a good and unincumbered title to the land.

The vendees went on and paid out to and for the vendor, in the aggregate, $34,773 55; of which $6,863 00 was paid to the vendor himself, under the belief that enough of the purchase money remained to take up all the liens on the land; and under a like belief notes against him were taken up to theamount of $4,349 96. The executions taken up *amounted to $1,515 95, and the mortgages to $15,707 91. The mortgages, without being entered, satisfied or marked paid, were delivered over to the vendees, and are still held by them; the understanding with the mortgagees at the time the latter received the money upon them being that said mortgages were to remain open in the hands of thevendees as their property, and for their protection in the event it became necessary. The mortgagees would then have executed to the said vendees a written assignment or transfer of the mortgages, but by mistake it was omitted, and they now decline to do so.

The vendees placed in the hands of an agent $1,771 37, to take up two executions and a note against the vendor, one of the executions being that in favor of Paris, one of the defendants in the bill, which money the parties refused to receive, and it was lost.

Ten executions against the vendor, older than the mortgages, have been levied upon one of the lots of land embraced in the purchase, worth to the settlement $1,500 00, and it has been sold under the levy, and is a total loss to the vendees. There are yet outstanding executions older than the mortgages to the amount of $3,500 00, which will have to be paid out of the land, as the vendor has no other property subject to them. The land is not worth more in currency than $10,000 00—less than enough to pay the mortgages—and, after paying the older executions, will not sell for half enough to satisfy them.

Calhoun's execution is for over $4,000 00....