Hill v. Winn
| Decision Date | 31 January 1878 |
| Citation | 60 Ga. 337 |
| Parties | Hill. v. Winn. |
| Court | Georgia Supreme Court |
Ejectment. Bond for titles. Vendor and purchaser. Before Judge Pottle. Oglethorpe Superior Court. October Term. 1876.
Winn brought complaint against Hill for a tract of land situated in Oglethorpe county. Hill pleaded the general issue, and that but one of the four purchase money notes, for $598.70 each, is due; that the plaintiff has no title to the land as he holds it under bond from Warren Hawks, and has never paid the purchase money therefor; that plaintiff is insolvent and would not be able to respond in damages for a breach of his warranty; that he ought not to recover because defendant would have paid the first of said notes given by him for the land had it not been for plaintiff's insolvency and his inability to comply with his contract.
The jury found for the plaintiff. The defendant moved for a new trial upon the following grounds:
1st. Because the court erred in refusing to charge the jury as follows: "If you believe that three of the purchase *money notes of Hill to Winn have not yet become due, then Winn cannot recover in this action of ejectment." "If you believe that Winn has no title to the land he purchased from Hawks, and owes thereon several hundred dollars of the purchase money, and is insolvent, it is a sufficient reason to excuse Hill from not paving the purchase money note which has become due, and his failure to pay said note does not give to the plaintiff the right to recover in this action, if Winn is not, for the reasons stated, in a condition to comply with his part of the contract."
2d. Because the court erred in charging as follows: "The insolvency of Winn has nothing to do with this case, if Hill bought the land from him with a knowledge of the condition of Winn's title at the time he bought."
The motion was overruled and the defendant excepted.
Sam. Lumpkin, for plaintiff in error.
J. D. Mathews, for defendant.
1. When title is retained as security for purchase money, the security ought to be available as soon as the debtor puts himself in default. The duty of paving the first installment is as perfect as the duty of paving the last. If the purchaser seeks to retain the possession of the land as against the better title, let him pay according to his undertaking. Why should he have more time than he has stipulated for?
2. The insolvency of the...
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Abercrombie v. Stoddard
...on his part, and that he is not in default." (Rose v. Perkins, 98 Mo. 253, 11 S.W. 622; Home Mfg. Co. v. Gough, 2 Ill.App. 447; Hall v. Winn, 60 Ga. 337; Knox v. Pratt Burnett, 19 Fla. 817; Cleveland v. Aldridge, 94 Ark. 51, 125 S.W. 1016; Sowle v. Holdredge, 17 Ind. 236; Coughran v. Bieglo......
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Sweat v. Arline
... ... Smith, 175 Ga. 795(4), 166 S.E. 234, ... and cit.; Polhill v. Brown, 84 Ga. 338(9, 10), 10 ... S.E. 921; Alston v. Wingfield, 53 Ga. 18; Hill ... v. Winn, 60 Ga. 337(1); Stevens v. McCurdy, 124 ... Ga. 456, 458, 52 S.E. 762. A purchaser from the grantor in ... the security deed, ... ...
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Sweat v. Arline, 12169.
...175 Ga. 795 (4), 166 S.E. 234, and cit.; Polhill v. Brown, 84 Ga. 338 (9, 10), 10 S.E. 921; Alston v. Wingfield, 53 Ga. 18; Hill v. Winn, 60 Ga. 337 (1); Stevens v. McCurdy, 124 Ga. 456, 458, 52 S.E. 762. A purchaser from the grantor in the security deed, therefore, claiming an adverse poss......
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Hall v. Dallas Joint-Stock Land Bank of Dallas
...to an action by the vendor to recover the possession of the land, that the latter had no title. It was not an issuable defense. Hill v. Winn, 60 Ga. 337; 7 Enc. Pl. & Pr. 319. The inability of the vendors to make the title which they had contracted to make would give the vendee a cause of a......