McCurry v. Robinson , 23 Ga. 321 ( 1857 )

By the Court —

Benning J.

delivering the opinion.

The effect of the contract, between Robinson and McCurry, was such, as to make Robinson hold the legal title to the land, in trust for McCurry on McCurry’s paying the purchase money. Therefore, the effect of the contract was, to put the equitable title to the land in McCurry.

This equitable title, McCurry did not lose by his failure to pay the purchase money at the time when it -fell due; for, in the first place, the contract was one in which, the time of this payment, was not essential; and in the second, McCurry had, perhaps, used sufficient diligence in trying to pay the money at the time when it fell due.

This title in McCurry, however, being but an equitable title, and an equitable title not giving him the right to the legal title until the payment of the purchase money, this equitable title being, in other words, one that was not complete, was not a title by which, he could defend himself from an action of ejectment, founded on the legal title. Pitts vs. Bullard, 3 Kelly.

Wood stood in Robinson’s shoes, for when he purchased from Robinson, he had notice of McCurry’s title.

These things being so, what was the right which McCurry had, as against Wood and Robinson ? It was the right to a specific performance of the contract of purchase, on his payment, or tender of the purchase money.

Did he lose this right, by letting the judgment in the action of ejectment, go against him before he filed his bill praying for such specific performance ?

He did not. His equitable title, all the title which he had, was one that he could not set up in a Court of law. Therefore, the judgment in the ejectment suit decided nothing against that title. Pollack vs. Gilbert, 16 Ga. Rep. 398.

We think, then, that the Court erred in holding, that there was no equity in this bill.

Judgment reversed.