Quitman Furniture & Hardware Co. v. Rountree , 14 Ga. App. 382 ( 1914 )

Russell, C. J.

(After stating the foregoing facts.) Two controlling questions which arise in this case are: (1) whether Rountree could purchase at his own sale under the power of attorney contained in the security deed, and (2) whether he can maintain an action for breach of warranty, there being no covenant of warranty in the paper just referred to. As we have already held in Pressley v. McLanahan, ante, 366 (80 S. E. 902), there was nothing to prevent Eountree from purchasing at his own sale. The sale might be voidable at the instance of the debtor, if, within a reasonable time, he tendered the amount of the debt, with interest. The more important question is whether one who buys at a sale made in conformity with the power of attorney contained in a deed given to secure the indebtedness is such a purchaser as is included within the terms of section 4193 of the Civil Code. This section provides that “the purchaser of lands obtains with the title, however conveyed to him, at public or private sale, all the rights which any former owner of the land, under whom he claims, may have had by virtue of any covenants of warranty . . contained in the conveyance from any former grantor,” etc. It is insisted that the pleadings in the present case show that the plaintiff was not a purchaser, but held under an instrument which was security for a debt, at the time he was ousted. This is immaterial. The adjudication depends upon the fact that ehoses in action are assignable in this State, whereas at common law they were not assignable; and it would make no more difference that it was impossible for Eountree to obtain possession on account of the existence of a paramount title than if he had been compelled to yield possession already acquired to such title. Eountree had the right to sue for a breach of warranty, and would have had this right even if he had been a purchaser under a quitclaim deed. Privity supports his right of action, if there is a breach of the warranty given by any grantor in the chain of title. The pivotal question in the whole ease,is whether Eountree is a purchaser; and upon that point the language of the code .section is plain and explicit.

We grant, as argued by counsel for the plaintiff in error, that if Eountree’s suit for breach of warranty depended upon his security deed, he would not be a purchaser; but the allegations of the petition show that under the power of sale in the security deed a valid sale was held, and Eountree became at that sale a “purchaser.” If the sale of Eountree, as agent for Monroe, to himself in his individual capacity was for any reason void, of course Eountree would not be a “purchaser.” If the sale is valid, he is a purchaser and entitled to the rights conferred by section 4193, supra. The intervening contract between the .Quitman Furniture and Hardware Company and Monroe, in which the company agreed to reimburse Monroe in case of loss, and the attempt to fulfill this contract by applying the purchase-price of $266.66 upon Monroe’s indebtedness to the company, has no bearing or effect upon Rountree’s rights. It is undoubtedly true that Rountree could have proceeded against Monroe instead of against the company, but he was not compelled to do so; and any equities between the company and Monroe he could very well afford to leave to the parties directly concerned. Rountree had the right to purchase the property at his own sale; and he had the right to sue any one of the grantors upon the warranty, which was a covenant running with the land. So far as the Quitman Furniture and Hardware Company is concerned, it is not in a position to assert purely personal defenses that might have been interposed by Monroe; and so far as appears from the allegations of the petition, the sale by Rountree was within the express terms of the contract. We conclude, therefore, that he had the right to sell and to purchase at the sale, and that the sale could not be affected except by proof of fraud or collusion on the part of Rountree and Monroe.

The demurrers to the petition were properly overruled. And since the evidence authorized the verdict, there was no error in refusing a new trial. Judgment affirmed.