Fulcher & Co. v. Son

• Decision Date: 31 October 1887
• Citation: 80 Ga. 74
• Court: Georgia Supreme Court
• Parties: Fulcher & Company et al. vs. Daniel & Son.

80 Ga. 74

Fulcher & Company et al. vs. Daniel & Son.

Supreme Court of the State of Georgia

OCTOBER TERM, 1887.

Specific performance. Bond for title. Contracts. Assignment. Subrogation. Vendor and purchaser. Before Judge Hines. Scriven superior court. May term 1887.

Reported in the decision.

H. C. Kittles, by brief, for plaintiffs in error.

T. H. Potter, contra.

Blandford, Justice.

Fulcher & Company sold a tract of land in the county of Scriven to Samuel Moffat for the sum of $145, and took his note therefor, and executed a bond for title, in which they obligated themselves to make title to this land to ''Samuel Moffat, his heirs, executors and administrators."

This was in January, 1884. In the bond for title was a special contract stating, that if Moffat failed to make payment for fifteen days after the payment became due, then they could give him notice in writing and could re-enter and take possession of the land, at their option. In January, 1885, James A. Fulcher conveyed all of his interest in this land to his partner, George A. Heard, of the firm of Fulcher & Company. Heard, after this deed was made, extended the time of payment allowed Moffat under the bond, taking from Moffat, in renewal of the note given for the purchase-money, two notes for the principal and interest due on the original note. Heard afterwards brought his action in a justice\'s court against Moffat on these two promissory notes, and obtained a judgment. Moffat then assigned this bond, in writing, to James II. Daniel & Son. Daniel & Son tendered to Heard the purchase-money, — the principal, interest and costs due on the judgment which Heard had obtained against Moffat in the justice\'s court. Heard declined to receive it. Daniel & Son then filed this bill, alleging the facts which I have stated, and praying for a specific performance of this contract. The bill was answered by Fulcher and by Heard, admitting all the allegations and facts stated in the bill; and the court decreed a specific performance of the contract. Thereupon Fulcher & Company prosecuted this writ of error to reverse that decree, assigning the same as error.

1. The point is made here by Fulcher & Company that this bond was unassignable, —that it was made payable to Moffat, and his heirs, executors and administrators, but not to his assigns. We think that, under sections 2244 and 2776 of the code, this bond was assignable. By section 2776 it is declared that all bonds for the payment of money or any article of property may be assigned in writing; and by section 2244, all choses in action arising upon contract may be assigned so as to vest the title in the assignee. That Moffat at the time he made the assignment owned this bond, there can be no doubt. The bond was payableto him and his...