Campbell v. Gormley

• Decision Date: 17 June 1937
• Docket Number: 11850.
• Citation: 192 S.E. 430,184 Ga. 647
• Parties: CAMPBELL v. GORMLEY et al.
• Court: Georgia Supreme Court

192 S.E. 430

184 Ga. 647

CAMPBELL v. GORMLEY et al.

No. 11850.

Supreme Court of Georgia

June 17, 1937

Judgment Adhered to After a Rehearing July 22, 1937.

Error from Superior Court, Fulton County; John D. Humphries, Judge.

Suit by R. E. Gormley, superintendent of banks, against H. D Campbell and others, wherein defendant Campbell intervened. To review the decree, defendant Campbell brings error.

Reversed.

H. E. Edwards, of Atlanta, for plaintiff in error.

Chas G. Bruce, of Atlanta, for defendants in error.

Syllabus OPINION.

JENKINS Justice.

1. While it is true that where the record shows merely that there was some undisclosed objection to or attack upon an amendment to a plea, a judgment of disallowance for an undisclosed reason will be affirmed, since it is the duty of a plaintiff in error to show error, and this court will assume that the judge properly refused the allowance for a good reason, including the absence of the accompanying affidavit required by law (Benson v. Marietta Fertilizer Co., 139 Ga. 691, 77 S.E. 1125; Upchurch v. Nichols, 15 Ga.App. 359, 83 S.E. 273; Roberts v. LeMaster, 16 Ga.App. 385, 85 S.E. 615; Seawright v. Dickson, 16 Ga.App. 436, 439, 85 S.E. 625; Southern Ry. Co. v. Atlanta Sand Co., 8 Ga.App. 315, 316, 68 S.E. 1078; Greer v. Andrew, 133 Ga. 193(7), 207, 65 S.E. 416; Code, §§ 81-1310, 81-401), yet where, as in the instant case, the record not only fails to show that the plaintiff objected to the allowance of the amendment or properly attacked it because of the absence of such affidavit, but it affirmatively appears that the court rejected it or sustained a demurrer thereto on other specified grounds, the lack of the affidavit will not be considered by the appellate court as a reason for the rejection, so as to affirm the judgment on that ground. In such a case it will be assumed that the plaintiff waived his right of objection. O'Kelly v. Welch, 18 Ga.App. 157, 89 S.E. 76; Early v. Hampton, 15 Ga.App. 95, 98, 82 S.E. 669. See, also, Edwards v. Boyd Co., 136 Ga. 733, 738, 72 S.E. 34; Jackson v. Jackson, 150 Ga. 544, 546, 104 S.E. 236; Terrell County v. Dawson, 172 Ga. 403, 158 S.E. 47; Rodgers v. Caldwell, 122 Ga. 279, 50 S.E. 95; Ward v. Frick Co., 95 Ga. 804, 806, 22 S.E. 899; Holbert v. Allred, 24 Ga.App. 727, 102 S.E. 192.

2. Where a vendor sells land, takes for part of the purchase money a note payable to himself or order, and gives to the purchaser his bond for title, by which he obligates himself to convey the land on payment of the note, the vendor holds the title to the land as security for the payment of the purchase money. Where, after a general indorsement of such a note by the vendor, the transferee reduces it to judgment, it is the duty of the vendor to convey the land by quitclaim deed to the purchaser for the purpose of levy and sale under the judgment and execution; and upon a refusal by the vendor to make such a conveyance when so requested by his transferee, a court of equity will compel the vendor to make such conveyance. Holbrook v. Adams, 166 Ga. 871(3), 144 S.E. 657; Carlton v. Reeves, 157 Ga. 602, 607, 122 S.E. 320; Carter v. Johnson, 156 Ga. 207(5), 119 S.E. 22; Code, §§ 39-201, 67-1501.

3. Ordinarily, 'a purchaser of land, who is in possession cannot have relief in equity against the payment of the purchase money, upon the mere ground of a defect of title, before eviction. If he is in possession * * * under a bond for titles, he must resort to his bond.' But 'if the obligor * * * is insolvent, or without the jurisdiction of the courts, and there is no property within the jurisdiction, which would be liable to the satisfaction of his damages, and there is an outstanding title paramount to his, the purchaser will be entitled to relief against the payment of the purchase money, to the extent of his damage before eviction.' Under such conditions of insolvency or nonresidence, 'equity will enjoin the judgment for the purchase money, until an accounting is had between the parties, and decree a credit in favor of the purchaser, equivalent to the damage sustained.' ...