Swinson v. Shurling , 162 Ga. 604 ( 1926 )

Per Curiam.

1. Where A, the owner of land, contracted to sell the same to B, and accordingly executed a bond to make title when full payment should be made as stipulated in the contract, deferred payments being evidenced by promissory notes, and .where the purchaser failed to pay some of said notes, and the vendor indorsed and transferred one of them to C, and to secure the payment of the note so indorsed executed a security deed conveying said land to C, which deed contained a provision empowering C to sell the said land to pay said note of B, and, B having failed to pay said note, C did sell said land after full compliance with the terms of the power of sale, the purchaser at such sale acquired all of the interest in said land possessed by A at the time he executed the security deed to C. As a matter of course, A held the legal title to the land subject to the equity of B.

2. Where, under the circumstances stated above, C brought suit on the note of B, transferred to and held by him, and obtained a judgment on which execution issued, and the same was assigned to D, who had purchased the interest of A in the land at the sale conducted by 0, and D, having executed a quitclaim deed to B, had the same filed and recorded for the purpose of levy and sale under the fi. fa. assigned to him by C, and, after such filing and recording of such deed and the due filing of the execution, the latter was levied on the land for the purpose of selling the interest of B, and the land was accordingly sold by the sheriff to D and a proper deed was executed and delivered, D acquired thereby all of the interest of B. Cumming v. McDade, 118 Ga. 612 (2) (45 S. E. 479) ; Harvard v. Davis, 145 Ga. 583 (89 S. E. 740). Compare Carlton v. Reeves, 157 Ga. 602 (122 S. E. 320).

No. 5038. September 11, 1926.

3. “In cases where a contract to purchase has been made, or bond for title made, or the purchase-money has been partly paid . . and the purchase-money or secured debt has been reduced to judgment by the payee, assignee, or holder of said debt, the holder of the legal title [italics ours] . . shall, without order of any court, make and execute . . a quitclaim conveyance to such real or personal property, and file and have same recorded in the clerk’s office; and thereupon the same may be levied upon and sold as other property of said defendant,” etc. Civil Code (1910), § 6037. Under this provision, the “holder of the legal title,” and not the original vendor, was the proper person to execute the quitclaim deed under the fi. fa., which was done in this case, the vendor having conveyed the legal title to D. If the note only had been transferred and no deed had been made conveying the legal title to the land as security, then it would have been necessary, after the transferee had obtained judgment, that the vendor execute a quitclaim deed to the purchaser before the fi. fa. could have been levied, because in that event the vendor would have continued to be the holder of the legal title. Maddox v. Arthur, 122 Ga. 671 (3), 675 (50 8. E. 668).

4. Having acquired the entire interest in the land, consolidating the legal and the equitable title, D was as such owner entitled to be put in possession.

5. B, the purchaser, who had never paid for the land and had suffered judgment to be rendered against him, and the land to be sold to satisfy the fi. fa. issued against him, although he may have afterwards tendered the amount due by him, of which there is no proof, was not entitled to hold the land nor to an injunction to prevent the sheriff from dispossessing him. Cumming v. McDade, supra.

6. Accordingly the court erred in refusing to grant a new trial.

Judgment reversed.

All the Justices concur. Hartwell L. Williams, for plaintiff in error. Wade H. Watson, contra.