Noyes v. Ray

• Decision Date: 30 September 1879
• Parties: Noyes. v. Ray.
• Court: Georgia Supreme Court

64 Ga. 284

Noyes. v. Ray.

Supreme Court of the State of Georgia

(September Term, 1879.)

Bond for title. Mortgage. Negotiable instruments. Before Judge Underwood. Polk Superior Court. February Term, 1879.

On November 9th, 1876, Mattie C. Carroll agreed to sell to Ray a lot of land for $500.00, took his negotiable note for that sum, due November 1st, 1877, bearing interest from date, and executed her bond for title containing the following provisions: "Now if the said Mattie C. Carroll shall convey, or cause *to be conveyed, to the said Linton G. Ray, or to such uses and to such persons as he may appoint or direct, free from all mortgages or incumbrances, by such conveyance as the said Linton G. Ray may reasonably demand, upon the payment by the said Linton G. Ray of his promissory note, so given by him as aforesaid as the consideration for the purchase of said house and lot, then this bond to be void, else to remain of full force. I, the said Mattie C. Carroll, hereby direct that the said Linton G. Ray may first pay off and take up my promissory note given to A. Huntington, March 10th, 1876, for $150.00, and bearing interest at the rate of 12 per cent. per annum, due January 1st, 1877, said note being secured by mortgage deed executed on March 10th, 1876, for the better securing the payment of said note. Said mortgage covers the aforesaid described premises."

Whilst the note given by Ray for the land was held by Mrs. Carroll, the payee, he paid about $79.00 thereon. She then, on January 5th, 1877, transferred it to Noyes, he paying about $270.00 therefor, the amount of the credits and of the debt to Huntington, with interest, referred to in the bond, being deducted. He took with full notice of the mortgage, the bond and all its terms. Subsequently the mortgage was foreclosed, and the property sold, Noyes becoming the purchaser for $220.00. This amount he credited on the Ray note. The latter being dispossessed by the sale, declined to make any further payment, and Noyes brought suit for the balance. The jury found for the defendant. Noyes moved for a new trial because the verdict was contrary to the evidence and the law. The motion was overruled, and he excepted.

Blance & King, by E. N. Broyles, for plaintiff in error.

No appearance for defendant.

BLECKLEY, Justice.

Certain land belonged to Mrs. Carroll. Huntington held *a mortgage on it to secure a debt which she owed him. Mrs. Carroll sold the land for full value to Ray, taking his negotiable note for the price, and giving him her bond for titles. In the bond she referred to the mortgage and directed Ray to pay it off, giving the direction in a way to imply that so much...