McEntyre v. Merritt

• Decision Date: 14 January 1932
• Docket Number: 21436.
• Citation: 162 S.E. 424,44 Ga.App. 583
• Parties: McENTYRE v. MERRITT.
• Court: Georgia Court of Appeals

162 S.E. 424

44 Ga.App. 583

McENTYRE v. MERRITT.

No. 21436.

Court of Appeals of Georgia, Second Division

January 14, 1932

Syllabus OPINION.

There is no presumption of express warranty in contract to sell land.

Subvendee's redemption of property, sold for taxes assessed during vendor's ownership, did not amount to tax payment, or authorize recovery from vendor of amount expended, where vendor made no warranty of title (Civ. Code 1910, § § 1169 4193).

Error from Superior Court, Cobb County; John S. Wood, Judge.

Action by A. T. Merritt against M. A. McEntyre. Judgment in favor of plaintiff was entered in the justice's court, the superior court denied certiorari, and defendant brings error.

Reversed.

H. B Moss, of Marietta, for plaintiff in error.

Thos E. Latimer, of Marietta, for defendant in error.

BELL J.

1. There is no implied warranty of title in a sale of land. Civil Code 1910, § 4193. Nor is there any presumption that the grantor has made an express warranty in a contract of sale. Gano v. Green, 116 Ga. 22 (1), 42 S.E. 371; Lang v. Hall, 25 Ga.App. 118 (4), 102 S.E. 877.

2. Where an owner of land suffered the same to be sold for taxes assessed during his ownership, and thereafter, without redeeming the land, sold and conveyed it to another, and a vendee of the latter redeemed the property from the purchaser at the tax sale (Civil Code of 1910, § 1169), the act of such vendee in redeeming the property did not amount to a payment of the taxes for which the property was sold, but was a mere exercise of the right of redemption as conveyed by the previous owners. Bennett v. Southern Pine Co., 123 Ga. 618 (1, 2), 51 S.E. 654; Elrod v. Owensboro Wagon Co., 128 Ga. 361 (1), 57 S.E. 712. And where the first owner had made no warranty of title, an action against him as for money paid for his benefit could not be maintained by the person who redeemed the property to recover the amount expended for that purpose. McDonough v. Martin, 88 Ga. 675, 16 S.E. 59, 18 L.R.A. 343; Henry Pilcher's Sons v. Thompson, 145 Ga. 604 (2), 89 S.E. 698.

(a) Whether or not the plaintiff could have maintained the action if the transaction relied on had amounted to a payment of the taxes, or if a warranty of title by the defendant had been shown, need not be decided, since neither of such cases is presented by the facts as they appear in the record. See, in this connection, William Ede Co. v. Heywood, 153 Cal. 615,...