Corbaley v. Hughes

• Decision Date: 31 August 1877
• Citation: 59 Ga. 494
• Parties: John A. Corbaley, plaintiff in error. v. Alice J. Hughes, defendant in error.
• Court: Georgia Supreme Court

59 Ga. 494

John A. Corbaley, plaintiff in error. v. Alice J. Hughes, defendant in error.

Supreme Court of the State of Georgia

(August Term, 1877.)

Vendor and purchaser. Sales. Levy and sale. Promissory notes. Homestead. Before Judge Crawford. Muscogee Superior Court. May Term, 1877.

Reported in the opinion.

Joseph H. Pou, for plaintiff in error.

R. J. Moses, for defendant.

JACKSON, Judge.

The plaintiff sued the defendant on five promissory notes, each for two hundred dollars. The defendant pleaded that the notes were given for a lot of land in Columbus, and that plaintiff had executed a bond to make title thereto payable to her; that before the notes matured a judgment was rendered for $500 against Corball.y and levied on the land; that notice was given to plaintiff thereof, with offer to pay the notes if he would remove the incumbrance and give her a good title; that this was refused, the property was sold and she was forced to pay eight hundred dollars to the purchaser; that she was willing to pay the balance, but prayed to be allowed to set off the $800.00. Several equitable pleas to this effect were put in and demurred to, and the demurrer was overruled. The evidence on the hearing sustained substantially the pleas, and the court charged the jury that *though the bond for title under which Hughes took possession was prior to the judgment, the judgment had a lien upon the premises as the property of Corbally, and that Alice Hughes could set off what she had to pay to remove the incumbrance of that judgment; that to that extent the consideration of the notes had failed, and she could set it up and have the deduction made.

It appeared also in evidence that prior to the levy and sale of the premises sold, the notes given were set aside as exempted personalty to Corbally, and the court was requested to charge that if this was so, and if Alice Hughes and the purchaser at the sale had notice thereof, that the sale was void and no deduction could be made, or set off allowed, on account thereof and of her purchase of the title. This charge the court refused, but charged the contrary thereof. The jury allowed the set off or failure of consideration, and found only two hun-dred dollars and interest for the plaintiff. To the overruling the demurrer to the pleas, and to these charges and refusals to charge, plaintiff excepted and when analyzed the case presents two points for our adjudication.

1. First, where a vendor, retaining the legal title, gives to vendee a bond for title, and takes her notes for the purchase money, and before the money is paid or the notes fall due, a judgment is obtained against the vendor and levied on the property, and he is notified thereof but fails to interfere, and the property is sold and the vendee forced to buy off the title at sheriff's sale, and the vendor is insolvent, can the vendee set off equitably what she has been forced to pay against the notes, or plead it in part...