McEntyre v. Merritt

• Decision Date: 13 August 1934
• Docket Number: 23618.
• Citation: 175 S.E. 661,49 Ga.App. 416
• Parties: McENTYRE et al. v. MERRITT.
• Court: Georgia Court of Appeals

175 S.E. 661

49 Ga.App. 416

McENTYRE et al. v. MERRITT.

No. 23618.

Court of Appeals of Georgia, Second Division

August 13, 1934

Rehearing Denied Aug. 29, 1934.

Syllabus by Editorial Staff.

Judgment that subvendee who redeemed property sold for taxes assessed during vendor's ownership could not recover tax money from vendor, expressly disavowing determination of result were it shown that vendor had warranted title, held not to bar subsequent action by subvendee against vendee and vendor for same tax money, either on theory of "res judicata" or "estoppel by judgment," where subsequent suit was based upon express warranties of title in vendor's and vendee's deeds (Civ. Code 1910, §§ 4335, 4336).

Under the doctrine of "res judicata," the subvendee would be bound to the extent of all matters put in issue or which under the rules of law, might have been put in issue by the pleadings in the previous litigation, and under the doctrine of "estoppel by judgment," even though the previous litigation may have been based upon a different cause of action, the "estoppel by judgment" would extend to such matters within the scope of the previous pleadings as necessarily had to be adjudicated in order for the previous judgment to be rendered, or to such matters, within the scope of those pleadings, as might or might not have been adjudicated, but which aliunde proof showed to have been actually litigated and determined.

Vendee under warranty deed may recover from vendor money fairly and reasonably paid to remove outstanding incumbrance, which was valid lien on land at time of its purchase (Civ. Code 1910 §§ 4192, 4194).

Unrestricted express warranty of title is covenant running with land, authorizing purchaser to maintain action thereon against any prior grantor making such warranty, where purchaser is privy in estate (Civ. Code 1910, §§ 4192, 4194).

In subvendee's suit against vendee and vendor to recover amount of taxes, assessed during vendor's ownership, which vendee had paid, where both defendants warranted title, vendee was liable, although vendee did not own land when taxes in question accrued (Civ. Code 1910, §§ 4192, 4194).

Error from Superior Court, Cobb County; J. R. Hutcheson, Judge.

Suit by A. T. Merritt against M. A. McEntyre and another. Judgment for plaintiff, and defendants bring error.

Affirmed.

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

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

Syllabus OPINION.

JENKINS Presiding Judge.

1. Where an owner of land suffered the same to be sold for taxes, and thereafter sold and conveyed it to another, and a vendee of the latter redeemed the property from the purchaser at the tax sale, the person who redeemed the property could not maintain an action against the first owner as for money paid for his benefit to recover such tax moneys, in the absence of an express warranty of title in the contract of sale made by the first owner; there being no such implied warranty in a sale of land. McEntyre v. Merritt, 44 Ga.App. 583 (1, 2), 162 S.E. 424. In that ruling, which reversed a decision on certiorari affirming a justice court judgment in favor of the plaintiff, it was expressly held that, "whether or not the plaintiff could have maintained the action if * * * a warranty of title by the defendant had been shown, need not be decided," since such a case was not presented by the record. The petition in that case did not refer to any express warranty, and did not plead any contract or privity of relationship between the plaintiff and the defendant, the original owner. There was no evidence as to any express warranty or any contract between them, but on the contrary the plaintiff testified: "That he paid out the money * * * to redeem a piece of land owned by [the defendant] in 1923; that [the defendant] did not ask him to pay the money, and didn't know that he was going to pay it, and did not know it until after it was paid; that [the defendant] had never promised to repay him; that he bought the land from [a vendee of the defendant], and sold it to [another person]; that he did not buy the land from [the defendant], and had no dealings with him concerning the land." Consequently, where the same plaintiff brought the instant action against the original owner, the defendant in the former case, and his vendee, for the recovery of the tax moneys expended by the plaintiff, and...