Mcentyre v. Merritt

• Decision Date: 13 August 1934
• Docket Number: No. 23618.,23618.
• Citation: 175 S.E. 661,49 Ga.App. 416
• Parties: McENTYRE et al. v. MERRITT.
• Court: Georgia Court of Appeals

49 Ga.App. 416

175 S.E. 661

McENTYRE et al.

v.MERRITT.

No. 23618.

Court of Appeals of Georgia, Division No. 2.

Aug. 13, 1934.

Rehearing Denied Aug. 29, 1934.

Syllabus by Editorial Staff.

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 by the Court.

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 anaction 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 ho 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 based his action upon the express warranties of title made in their warranty deeds by which he acquired ownership, and the proof sustained such allegations, his right of recovery was not defeated under the defendants' plea in bar, setting up that he was precluded by the adverse decision of this court in the former suit as to his rights, that "the subject-matter of this suit was embraced in the former suit, " and that "the cause of action is the same as that sued upon in the instant case." Whether or not the plea in bar be treated as one of res judicata or one of estoppel by judgment (see Farmer v. Baird, 35 Ga. App. 208, 132 S. E. 260, 261; Hamlin v. Johns, 41 Ga. App. 91 [1, 2], 151 S. E. 815), and giving to the defendants the benefit of principles applicable to both of those somewhat different doctrines--under the former that the plaintiff 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 latter, even though the previous litigation may have been ...