Georgia State Bldg. & Loan Ass'n v. Faison
| Decision Date | 05 February 1902 |
| Citation | 40 S.E. 760,114 Ga. 655 |
| Parties | GEORGIA STATE BUILDING & LOAN ASS'N v. FAISON. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Possession of land is notice to the world of whatever right the occupant has in the land.
2. Where an owner of land made to another a bond for titles, and the obligee in the bond paid part of the purchase money, gave his notes for the balance, and went into possession, and where the vendor subsequently, while the obligee was still in possession, transferred to a third person, by indorsement and for value, all of the purchase-money notes remaining unpaid and thereafter executed and delivered to another person a deed to the land, the grantee in such deed was chargeable with notice of the equity of the obligee in the land, and acquired against him no greater right than the vendor had at the date of the deed; and as the vendor had at that date no right to collect the purchase-money notes, which had been lawfully transferred to another person, such grantee did not acquire the right to collect any of the unpaid purchase-money notes, as against the transferee of the same, and therefore payment by the obligee to the holder of such notes of the balance of the purchase money gave to him a complete equity in the land, both as against the vendor and the grantee in the deed from him.
Error from superior court, Glynn county; W. E. Kay, Judge pro hac.
Action by the Georgia State Building & Loan Association against Shep Faison. Judgment for defendant, and plaintiff brings error. Affirmed.
Saussy & Saussy and D. W. Krauss, for plaintiff in error.
W. G Brantley, A. D. Gale, and Owens Johnson, for defendant in error.
The Georgia State Building & Loan Association of Savannah brought against Faison an action to recover possession of a described parcel of land. At the trial the following facts appeared Branham, Brown & Owens were the common grantors of both plaintiff and defendant. The plaintiff derived title as follows: A conveyance by Brown and Owens to Branham of their two-thirds interest in the property, dated January 5, 1891; a conveyance by Branham to plaintiff dated January 6, 1892, and recorded January 13, 1892, the same being a deed made for the purpose of securing a debt; and a conveyance from the sheriff to plaintiff dated January --, 1896, and recorded January 24, 1896. The latter deed was made in pursuance of a sale had under an execution in favor of plaintiff against Branham, which was founded upon a judgment rendered on the debt secured by the deed from Branham to the plaintiff, and the sheriff's sale was had after a proper reconveyance and levy. The title of the defendant rested upon the following state of facts: The defendant purchased of Branham, Brown & Owens the property in dispute, and received from them a bond for titles dated May 16, 1890. He paid a portion of the purchase money, and gave his notes for the balance, and went into possession of the premises described in the bond for titles on the day that the bond bears date, and has been continuously in possession up to the time of trial. The purchase-money notes given by the defendant consisted of 4 notes for $10 each, payable monthly from June to September, 1890, and 36 notes for $15 each, payable on the 15th day of each month from October 16, 1890, until all were paid. The firm of Branham, Brown & Owens dissolved, and upon the dissolution the notes due by the defendant to the firm remaining unpaid at that time were assigned to Branham, and he discounted them at a bank. The notes so discounted were indorsed, "Branham, Brown & Owens and William S. Branham." All the notes thus transferred to the bank were paid to it by the defendant. Twenty of the notes for $15 each became due and were paid after the date of the record of the deed from Branham to the plaintiff, and no part of such notes has ever been paid to the plaintiff. Upon this state of facts the court directed the jury to return a verdict in favor of the defendant, and this judgment of the court is assigned as error.
When land is sold, and a portion of the purchase-money is paid by the vendee, and the vendor delivers to the vendee a bond conditioned to make titles upon the payment of the balance of the purchase money, both the vendor and the vendee have a beneficial interest in the land; and each may sell or assign his interest, and the interest of either will pass to the purchaser at a sale had under an execution issued against the vendor or the vendee, as the case may be. But whether the sale be a judicial sale or a private sale, "it is not the land, but the debtor's interest in it, whether he be vendor or vendee, that is sold, leaving the residue untouched." Wilkerson v. Burr, 10 Ga. 117. The purchaser of the interest of the vendor, whether at private or public sale, is entitled to call for the balance of the purchase money as the representative of the vendor; and the purchaser of the interest of the vendee is entitled to call for a conveyance as the representative of the vendee, upon paying the balance due upon the purchase money. In determining what interest in the land the purchaser, under such circumstances, would obtain, it is therefore necessary to decide in each case what was the interest in the land at the time of the sale of the person from whom such purchaser bought. If the vendor transfers to a third person, without indorsement or guaranty, the unpaid purchase-money notes of the vendee, the vendor from that moment ceases to have any interest whatever in the land, and a purchaser from him at private sale, or a purchaser at judicial sale under an execution against him, acquires no interest whatever in the land. Tompkins v. Williams, 19 Ga. 570 (Syl., point 3); McGregor v. Matthis, 32 Ga. 417; Neal v Murphey, 60 Ga. 388. If the vendor transfers the purchase-money notes, and becomes bound for the payment of the same, either by indorsement or guaranty, and is thus liable to the assignee of the notes in the event the vendee fails to pay the same, he has such an interest in the land as will authorize him to resort to the same for reimbursement, in the event he is held liable on his contract of indorsement or guaranty, as the case may be. Is this contingent interest in the land, however, the subject-matter of a sale by the vendor at private sale, or can such an interest be seized on execution against the vendor? In Leitch v. May, 98 Ga. 714, 27 S.E. 151, it is settled that such an interest cannot be seized on execution; Mr. Chief Justice Simmons in the opinion (page 717, 98 Ga., and page 151, 27 S.E. ) saying, "It is clear that such an interest as this is too vague, uncertain, and contingent to be the subject-matter of levy and sale." The case just cited was followed in Ramspeck v. Healey, 102 Ga. 583, 27 S.E. 726. If such an interest could not be the subject-matter of a judicial sale, it would seem that for like...
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