Motz v. Alropa Corp.

• Court: Georgia Supreme Court
• Writing for the Court: JENKINS, Justice.
• Citation: Motz v. Alropa Corp., 192 Ga. 176, 15 S.E.2d 237 (Ga. 1941)
• Decision Date: 15 May 1941
• Docket Number: 13654.
• Parties: MOTZ v. ALROPA CORPORATION.

15 S.E.2d 237

192 Ga. 176

MOTZ v. ALROPA CORPORATION.

No. 13654.

Supreme Court of Georgia

May 15, 1941

John E. Feagin and George Carroll, both of Atlanta, for plaintiff in error.

Powell Goldstein, Frazer & Murphy and Elliott Goldstein, all of Atlanta, and Blanc & Steinberg, of Philadelphia, Pa., for defendant in error.

Jones Jones & Sparks, of Macon, for parties at interest, not parties to record

Syllabus Opinion by the Court.

JENKINS Justice.

1. The rights of the parties to a contract made and to be performed in another State are controlled not only by its pertinent statutes but by the decisions of its appellate courts construing and applying those statutes. John Hancock Mutual Life Insurance Co. v. Yates, 299 U.S. 178, 181 182, 57 S.Ct. 129, 80 L.Ed. 106; Burns Mortgage Co. v Fried, 292 U.S. 487, 54 S.Ct. 813, 78 L.Ed. 1380; Trustees of Williams Hospital v. Nisbit, 189 Ga. 807, 811(b), 7 S.E.2d 737; U.S. Constitution, art. 4, § 1, Code, § 1-401. But where only some rule of the common law of England is involved, in determining rights governed by the law of another State where the common law prevails, the construction of the common law given by the courts of this State will control, in preference to the construction given by the court of the State of the contract. Slaton v. Hall, 168 Ga. 710, 715, 148 S.E. 741, 73 A.L.R. 891; Lay v. Nashville, etc., Ry. Co., 131 Ga. 345(2), 62 S.E. 189; Thomas v. Clarkson, 125 Ga. 72(3), 78, 54 S.E. 77, 6 L.R.A.,N.S., 658, and cit.; Trustees of Williams Hospital v. Nisbit, supra; Bolton v. Bluestein, 55 Ga.App. 782(3), 191 S.E. 388; Motors Mortgage Corporation v. Purchase-Money Note Co., 38 Ga.App. 222(1), 143 S.E. 459.

2. In this equitable petition by a mortgagee of land, to obtain a deficiency judgment against a purchaser of the land from the mortgagor, where the deed from the mortgagor to the purchaser contained a provision that the purchaser assumed the mortgage debt as part payment of the consideration, it was expressly pleaded that Florida, the State of the contract and location of the land, had by statute adopted the common law of England, and that such common law was controlling as to this transaction. It was also pleaded that it was and is such common law as construed in Florida that a grantee who purchases mortgaged land from the mortgagor, under a provision in the deed assuming the mortgage, becomes liable to the mortgagee as effectually as though he himself signed the deed, and becomes thus liable in a separate suit by the mortgagee as to any deficiency after a foreclosure sale of the mortgaged premises. Accordingly, since only the rules of the common law, as adopted and construed in Florida, were thus pleaded as governing the transaction, the decisions of Georgia will prevail with reference thereto.

3. The defendant grantee contends that there are Georgia decisions construing the common law, and holding that a mere acceptance by the grantee of a deed, with a recital that the grantee assumes a previous mortgage, will not render the grantee liable to the mortgagee unless the grantee also enters into possession of the land; and that, in the absence of any averment as to an entry, the petition was subject to general demurrer. The Code, § 29-102, declares that 'When a grantee accepts a deed and enters thereunder, he will be bound by the covenants contained therein, although the deed has not been signed by him.' Before the codification of that provision, this court, in Georgia Southern Railroad v. Reeves, 64 Ga. 492, held that 'Where the grantor * * * conveyed to a company, its successors or assigns forever, in fee simple, [a] right of way through his land, and added in the deed' a provision requiring that a depot be built for the benefit of the grantor and use by the railroad, 'the grantee, by accepting such deed, entered into a covenant to comply with its terms, and this covenant ran with the land and became obligatory upon any second company which became the purchaser' of the property. Only the facts in that case showed an entry by the grantee. A consideration of the Code section and of that decision came before this court in Alropa Corporation v. Pomerance, 190 Ga. 1, 6, 8 S.E.2d 62, 66, where it was held: 'It will be perceived that while the facts showed acceptance of the deed by the grantee, and entry of possession of the land by the grantee by constructing and maintaining the railroad on the right of way so granted, the language of the decision by this court went so far as to say 'the grantee, by accepting such deed, entered into a covenant to comply with its terms,' omitting express reference to the additional matter of entry of possession thereunder. When the legislature went to deal with the matter as in the Code, § 29-102, it could have stopped with the language 'when a grantee accepts a deed,' he will be bound, etc., as the decision of this court declared in effect; but the legislature did not stop there. It added, 'and enters thereunder,' etc., thus declaring the whole principle that the facts of the case involved. The purport of the statute was to put in the month of the grantee, by implication, a promise not expressed nor signed by him, but with the qualification that he 'enters thereunder.' These qualifying words can not be written out of the statute, but must be given effect. If they could be written out of the statute, the preceding words which they qualify 'when a grantee accepts a deed,' could just as well be written out. If either were excluded, it would obviously defeat the legislative design. The qualifying words refer to entry of actual possession of the land, as was the fact in the Reeves case that called forth the enactment. On proper construction of the Code, § 29-102, applied to the instant case, there was no binding covenant in the deed * * * that the grantee should pay the debt.' The Pomerance decision was thus specifically based on a construction of the statute, rather than on any principle of the common law as adjudicated or construed in that case or in the Reeves decision. That such was the purport of the majority holding was also recognized by the minority opinion: 'From what is said in the prevailing opinion it seems that except for section 29-102 the majority would unquestionably hold, on general common-law principles relating to contracts, that acceptance of the deed without more would be sufficient to bind the grantee.' Accordingly, as to any previous decision by this court, there is no contrariety between the pleaded common-law rule as interpreted in Florida and the common law so far as it has been construed in this State; but contrariety exists solely by reason of the Georgia statute, which would not control this Florida transaction.

4. While there appears to be a variance in case and taxt...