Shumate v. Mclendon

• Decision Date: 09 June 1904
• Citation: 120 Ga. 396,48 S.E. 10
• Parties: SHUMATE v. McLENDON et al.
• Court: Georgia Supreme Court

48 S.E. 10

120 Ga. 396

SHUMATE

v.McLENDON et al.

Supreme Court of Georgia.

June 9, 1904.

EXECUTION—PROPERTY SUBJECT—BOND FOR TITLE—SECURITY DEED—REDEMPTION— TRANSFER OF DEBT.

1. Prior to the passage of the act of 1894 (Acts 1894, p. 100) a vendee of land, holding under a bond for titles, with a portion of the purchase money paid, had an interest in the land which was subject to levy and sale.

2. The act of 1894 is embraced within the provisions of Civ. Code 1895, §§ 5432-5434, under the terms of which the holder of a bond for titles has no leviable interest in the land, without reference to whether any portion of the purchase money has been paid, until he becomes invested with the legal title.

3. The security deed seems to be peculiar to the law of this state, and its legal status has been fixed by judicial decisions considering alone the nature of the instrument, and in many cases paying little or no regard to analogies.

4. Hence it has been held that a security deed conveys the absolute title, and leaves the grantor no interest in the land which can be subjected to levy and sale by a creditor whose judgment was obtained after the deed was executed.

5. Before such a levy and sale can be made, there must be a redemption of the property.

6. Redemption can be accomplished only by payment of the secured debt in full.

7. Lapse of time, even to such an extent as would bar a right of action on the evidence of debt, will not operate as redemption.

8. Even if it was ever the law of this state that a partial payment of the debt would give the grantor in a security deed a leviable interest in the land, or that, even where no part of the debt had been paid, a purchaser at a sheriff's sale under a subsequent judgment against the grantor would acquire the debtor's right to redeem by paying the money to the lender, such has not been the law since the passage of the act of 1894.

9. The debtor may redeem, or his subsequent judgment creditor may redeem. If the creditor redeem, he can compel a reconveyance by the grantee so as to revest the legal title in the debtor and make the land subject to sale under the creditor's judgment.

10. The grantee in a security deed holds the legal title for the benefit of the owner of the debt. As long as he owns the debt he holds for his own benefit; if he transfers the debt, but not the title, he holds for the benefit of the transferee.

11. The interest of the grantor is not affected by a transfer of the debt or of the title. He acquires no leviable interest until the debt is paid to the transferee.

12. Applying these principles to the facts of the present case, the legal title to the land in controversy is still in the original grantee in the security deed, for the benefit of the transferee of the debt. Neither the grantor, his legal representatives, nor his heirs have ever had, since the execution of the security deed, any lev iable interest in the property; and the judgment finding the property not subject to the execution was proper. (Syllabus by the Court.)

Error from Superior Court, Wilkes County; H. M. Holden, Judge.

Action by J. D. Shumate against one Barnett, administrator of Isaac McLendon. Judgment for plaintiff. On levy of execution, Samuel McLendon interposed a claim. Judgment finding the property not subject, and plaintiff brings error. Judgment on main bill of exceptions affirmed; cross-bill dismissed.

An execution in favor of Shumate, administrator, against Barnett, as administrator of Isaac McLendon, was levied upon a tract of land, and a claim thereto was interposed by Samuel McLendon! The case was submitted to the judge upon an agreed statement of facts, and he rendered a judgment finding the property not subject, and to this judgment the plaintiff in execution excepted.

The facts disclosed by the record are as follows: In 1854 Isaac McLendon became the owner of a tract of land which embraces the land now in controversy. On January 24,

1876, he conveyed to the Bank of Washington, by a security deed, the land in dispute. On April 29, 1876, Hill obtained judgment against Isaac McLendon, and the execution issued thereon was levied on the land in controversy on May 26, 1877, and on July 3,

1877, the land was sold to Sims & Truitt for $100. On these dates the debt due the Bank of Washington was still unpaid, and the sheriff's deed recited that the property was sold "subject to a 70 acres homestead in the same, and also subject to an incumbrance in favor of the Bank of Washington on the same." On January 5, 1877, Isaac McLendon applied to the ordinary for a homestead, under the provisions of the Constitution of 1868, in the land in controversy, and the homestead thus applied for was finally set apart on November 4, 1878. On April 4, 1878, Sims & Truitt conveyed the land to Mary McLendon, wife of Isaac McLendon, the deed reciting that the grantors held the land subject to the homestead and incumbrance above referred to, and that the conveyance was made subject thereto. In 1877 the Bank of Washington obtained judgment against Isaac McLendon, and on January 4, 1881, in consideration of $78.19, transferred the execution issued thereon to Sims & Truitt, who, on January 24, 1881, transferred the same to Mary McLendon. On this execution appear the following payments made by Mary McLendon: November 30, 1880, $150; December 30, 1880, $135. The security deed made by Isaac McLendon to the bank was delivered to Sims & Truitt, and by them delivered to Mary McLendon, at the time of the respective transfers, and was in possession of Mary McLendon at the time of her death, in 1901. No deed of reconveyance was ever made by the bank to Isaac McLendon. In November, 1877, Shumate, as administrator, obtained judgment against Isaac McLendon. This judgment became dormant, and in November, 1897, was revived by scire facias against Barnett as administrator, and the execution issued on this judgment is the one to the levy of which the present claim was interposed. The claimant is a child of Mary McLendon. In 1878 and 1879 Mary McLendon executed mortgages upon portions of the land in controversy, to secure debts due by her, which were afterwards paid. In 1878, 1879, 1881, and from 1894 to 1901, Mary McLendon returned the land in controversy for taxation as her own. The taxbooks for 1880, and from 1882 to 1893, could not be found. Since 1901 the property has been returned as the estate of Mary McLendon. After 1877 Isaac McLendon returned no land for taxation.

Colley & Sims, W. H. Toombs, and S. H. Hardeman, for plaintiff in error

Shumate. Wm. Wynne and B. S. Irvin, for defendant in error McLendon.

COBB, J. (after stating the foregoing facts). It was held in an early case that where land was sold and the vendee held under bond for titles, with a portion of the purchase money paid, both the vendor and the vendee had a leviable interest in the land, represented by the balance due on the purchase money in the one instance, and by the purchase money paid in the other; and that a purchaser at the sale would obtain such an interest in the laud as would give him a right to call for the balance of the purchase money, or to pay the balance of the purchase money and demand a conveyance, according to whether the vendor's or the vendee's interest had been seized under the execution. See Wilkerson v. Burr, 10 Ga. 117, and cases cited in Van Epps' Annotations. In 1875 the General Assembly, recognizing the inconvenience incident to such sales, passed an act which provided that, where any of the purchase money had been paid, the entire interest stipulated in the bond might be seized and sold under an execution against the vendee, and the proceeds of the sale so appropriated as to discharge, first, the amount due on the purchase money, and the balance distributed as the property of the vendee. Code 1882, § 3586. This provision of the Code of 1882 was superseded by the act of 1894, providing for a levy upon and sale of property...