Ellis v. Lockett
| Decision Date | 29 March 1897 |
| Citation | 28 S.E. 452,100 Ga. 719 |
| Parties | ELLIS v. LOCKETT. |
| Court | Georgia Supreme Court |
Vendor and Purchaser—Action for Price— Defenses—Pleadings.
1. Where a suit was brought by a vendor against a vendee for the purchase money of land of which the defendant was in undisturbed possession under a deed from the plaintiff, and an essential element of a defense which the defendant attempted to set up by special pleas was want of title in the plaintiff at the time such deed was executed, and the pleas in question did not, by their allegations, affirmatively show such want of title, there was no error in striking them on demurrer.
2. If, in point of fact, it was understood and agreed between the vendor and the vendee that the latter was to receive a title of a particular kind and character, —as, for instance, a title which would be pronounced good and "merchantable" by any reputable attorney in a named city, —and if the defendant actually purchased upon the faith of representations that the deed in question would operate to pass to him just such a title, which representations proved to be false, pleas attempting to set up a defense based upon these alleged grounds, but which failed to state them with the requisite clearness and distinctness so as to present issues for determination by a jury, could not be made available to defeat a recovery by the plaintiff, the pleas not otherwise alleging anything showing that the defendant's title under the deed would not be good.
3. If in the contract between the vendor and the vendee it was stipulated that the deed which the vendee was to receive should contain a specified warranty, and the latter accepted it, and went into possession under it, without such warranty, he could not afterwards set up the fact that the deed failed to contain the stipulated warranty in defense to an action for the purchase money.
(Syllabus by the Court.)
Error from superior court, Bibb county; W. H. Felton, Jr., Judge.
Action by J. W. Lockett, trustee, against William Lee Ellis for the purchase money of land. Judgment for defendant Plaintiff brings error. Affirmed.
Ryals & Stone, for plaintiff in error.
Hardeman, Davis & Turner, for defendant in error.
COBB, J. 1. When a vendee seeks to avoid the payment of the purchase money of land in defense to a suit brought by the vendor against him on the ground that the vendor had no title at the time the deed was executed, and where the vendee is in undisputed possession under such deed, it is incumbent upon him in his plea to set up such facts as would show that the vendor had no title. If there are several ways in which the vendor's title to the premises could have been acquired, a plea of want of title in defense to a suit for the purchase money would be fatally defective if it failed to negative every fact which would be consistent with title in the vendor. The...
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