Parrott v. Baker
| Citation | 9 S.E. 1068,82 Ga. 364 |
| Parties | PARROTT v. BAKER. |
| Decision Date | 31 July 1889 |
| Court | Supreme Court of Georgia |
Syllabus by the Court.
1. According to Powell v. Watts, 72 Ga. 770, in a statutory claim case the claimant is a competent witness in his own behalf to prove transactions between himself and the defendant in fi. fa., though the latter be dead.
2. Declarations and tax returns made by the vendee, when out of possession, and not in the presence of the vendor, are inadmissible at the instance of the vendee's creditor, as evidence to subject the land to the payment of his debt.
3. Land held by absolute deed as security for a debt still unpaid, is subject to levy and sale as the property of the vendee, under a judgment against him, no matter whether the judgment creditor gave credit on the faith of the property so held or not. The purchaser at sheriff's sale would acquire the right to receive the money due on the secured debt, as in the ordinary case of purchase money, where bond for titles is outstanding. Redemption of the land would be accomplished by paying to him what would otherwise be payable to the original vendee. If the deed was made to defraud the vendor's creditors, as well as to secure a debt, the land to the extent of its whole value would be subject to judgments against the vendee, as against a statutory claim interposed by the vendor himself.
4. An absolute deed of conveyance containing a warranty of title and purporting to be made on a valuable consideration, is valid and binding between the parties, though made for the purpose of defrauding creditors. The parties being in paridelicto, and the conveyance being an executed contract, the vendor cannot impeach it as a muniment of title in the vendee, whether possession of the land has been delivered under it or not, nor whether the vendee really paid the recited purchase money or not. The vendor is estopped. But an executory contract by the vendee--such as a bond for titles to reconvey to the vendor--may, when sought to be enforced, be impeached by the vendee, or even by his creditors, if shown to be directly connected with the fraudulent scheme in which the deed originated. For the purpose of resisting the enforcement of an executory part of the fraudulent scheme the whole scheme is open to inquiry.
5. Delivery of a deed is sufficiently proved by being recorded and by the maker of it being in possession of a written contract, signed by the vendee, stipulation for a reconveyance of the premises to the vendor.
Error from superior court, Barton county; FAIN, Judge.
Action by one Baker against Mrs. Parrott, plaintiff in fieri facias issued upon a judgment recovered by her against the executrix of the estate of one Johnson, deceased, and levied upon certain land conveyed by said Baker to said Johnson, deceased. After verdict found for plaintiff, Baker defendant, moved for a new trial. The motion was overruled, and Mrs. Parrott brings error.
R. B. Trippe and A. S. Johnson, for plaintiff in error.
Baker & Heyward, for defendant in error.
It seems from the record that Baker made to Johnson three deeds,-- two dated the 10th, and one the 11th, of April, 1879. One of the former date embraced certain premises which may be briefly designated as the "Irick Farm." It was a regular conveyance in fee-simple; the expressed consideration being $7,500 in hand paid, the receipt whereof was acknowledged. It warranted the title to Johnson, his heirs, etc., against the claims of all persons whatsoever, and was recorded on the 7th of April, 1880. The other two deeds were of like character, but embraced other and different premises. Johnson died. Mrs. Parrott obtained a money judgment against his executrix, as such, in May, 1884; and in February, 1886, the fieri facias issued upon this judgment was levied upon the Irick farm as the property of Johnson's estate. Baker interposed a claim. The claim case was tried, and a verdict rendered for the claimant. A motion for a new trial was made and overruled.
1. Was Baker a competent witness in his own behalf as to anything that transpired between himself and Johnson, the latter being dead? According to Powell v. Watts, 72 Ga. 770, he was. That case is a direct ruling upon the question; and, while it is in apparent conflict with Bothwell v. Dobbs, 59 Ga. 787, the two cases may possibly be reconcilable, because the latter was not only an effort to prove by the claimant a gift from the deceased debtor, but to prove a gift by parol, although the subject-matter was land. The judgment in this statutory claim case, should it be in favor of the claimant, will not affect Johnson's estate; his executrix, as defendant in fi. fa., not being a party to the present litigation between the plaintiff in fi. fa. and the claimant. The land in controversy will still be the property of the estate as fully and amply after it is determined not to be subject to this fi. fa. as it was before. Should it be found subject, the estate will get the benefit in so far as its proceeds may pay off this execution. If it is not found subject, the estate will still have the land, and will suffer no prejudice by the result of the claim case. Possibly, therefore, the rule laid down in Powell v. Watts, supra, may be correct. At all events, as the judge below followed that case, we shall not now reverse his ruling. Were a suit brought against Baker by the executrix for the recovery of these premises, he would clearly be an incompetent witness in his own behalf. Code, § 3854, exception 1.
2. There was no error in excluding the declarations of Johnson, made when Baker was not present, as to his (Johnson's) rights in this land; not in excluding the tax-books showing that he returned the same as his property for taxation. Johnson never entered into possession of the land, and his declarations into and tax return must therefore have been made when out of possession, and, consequently, when of no value to characterize possession, when of no value to characterize or showan adverse holding.
3. The claimant introduced in evidence two writings bearing Johnson's signature, one of them dated April 11, 1879; the other, April 7, 1880. Neither of them was under seal. The first was in these terms: The second was in these terms:
It will be seen that all three of the deeds were included in the first of these documents; and, supposing the object of the conveyances to be fully and truly stated in this writing, the question arises whether the land levied on, if it was conveyed as security only, is subject to the plaintiff's execution to the extent of Johnson's interest therein to-wit, $150. The court below was of opinion that this question turned on a second question, namely, whether the plaintiff in fi. fa. gave Johnson credit upon the faith of this property. The motion for a new trial in one of its grounds complains that the court erred in charging the jury, in substance and effect, that she must have credited Johnson on the faith of the property levied upon, or it could not be subjected to her fi. fa. We think this was error. The legal title being in Johnson by an absolute deed to secure payment of a debt, Johnson had an interest in the land commensurate with the amount of that debt. The rule is that the lien of a judgment against the holder of the legal title binds the property to the extent of the beneficial interest which such holder has in the property. Freem. Judgm. §§ 356, 357; Ware v. Jackson, 19 Ga. 452; Corbally v. Hughes, 59 Ga. 493. Even if the case falls under the provisions of section 1969 of the Code, we think such title as a debtor has in land is subject to levy and sale by virtue of any judgment rendered against him or his representatives; the Code (section 3580) declaring that judgments bind all the property of the defendant, both real and personal, from their date, except as otherwise provided in the Code itself. The general rule with respect to a bond for titles is that until the money is paid in full the property is subject to judgment liens, and to sale thereunder as the property of the vendor, (the maker of the bond,) and the purchaser acquires the right to receive the unpaid purchase money in lieu of the vendor. So here, we think, no matter when the debt of the plaintiff in fi. fa was created, the lien of her judgment attached upon this land, unless the money which it was conveyed to secure has been paid. It could not have been the intention of the relegislature that a debtor might convey his land to his creditor for an express consideration of $7,500 in hand paid, and then set up as against his creditor's creditors that he acquired no interest whatever in the land. True, section 1971 declares: "The vendor's right to a reconveyance of the property, upon his complying with the contract, shall not,...
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