Cook v. Georgia Fertilizer & Oil Co. , 154 Ga. 41 ( 1922 )

Fish, C. J.

1. The petition is not demurrable because of misjoinder of

parties or of causes of action. The petition is not multifarious because all of the defendants are not interested in all of the matters contained in the suit. It is sufficient if each party has an interest in some matter in the suit which is common to all, and that they are connected with the others. Blaisdell v. Bohr, 68 Ga. 56; Conley v. Buck, 100 Ga. 187 (28 S. E. 97); East Atlanta Land Co. v. Mower, 138 Ga. 380, 384 (75 S. E. 418).

2. A security deed to land conveys the legal title to the vendee, and the rights of the vendee can not be affected by subsequent acts of conveyance by the vendor to third parties. But the vendor has such an equitable interest in the premises conveyed as that he may create a valid second security deed, or lien, subject to the paramount right of the original grantee to have all the land appropriated to the payment of his debt. Williams v. Foy Mfg. Co., 111 Ga. 856 (36 S. E. 927), and cases cited. Civil Code (1910), §§ 3306, 3310, 6037; Willingham v. Huguenin, 129 Ga. 835 (60 S. E. 186); Beckcom v. Small, 152 Ga. 149 (108 S. E. 542). And see Kirkman v. Ashford, 145 Ga. 452 (89 S. E. 411).

(a) Cook, in the present case, not having paid off any claim superior to that of the Georgia Fertilizer & Oil Co., and to which he would be entitled, and not being a transferee of any bond for title given by the holders of prior security deeds, the case at bar is different from the eases of Crummey v. Bank, 30 Ga. 670; Williams v. Foy Co., 111 Ga. 135 (supra); Crawford v. Maddox, 117 Ga. 135 (43 S. E. 421).

No. 2869. August 17, 1922.

(6) The case of Wood-V. Dozier, 142 Ga. 538 (83 S. E. 133), differs in its facts from the instant case. There, Dozier, the owner of the land, gave to Hightower a deed to secure a debt, and took from Hightower a bond for reconveyance when the debt was paid. Afterwards he gave to Etheridge a second security deed, and at the same time transferred to Etheridge his bond for title from Hightower. Etheridge transferred all his right, title, and interest in the property to Treadwell & Co., including the bond for title from Hightower to Dozier. Afterwards Dozier mortgaged the property to Wood. When this mortgage was given, Dozier had neither the legal title nor an equity in the property, and under these circumstances there was at no time any title or interest in Dozier on which the mortgage could operate. This court held in that case that if the prior security deeds had been paid, then the mortgage would have become binding on the property. If the debts secured by these prior security deeds had been paid off, then the title would have revested in Dozier, and the mortgage given by him would then attach to the land. In that event, the year’s support of the widow would have been superior to the mortgage deed, under our law.

3. The petition as amended set forth an equitable cause of action, and the court did not err in overruling the demurrer filed thereto.

Judgment affirmed.

All the Justices concur, except Gilbert, •/., absent. M. B. Gannon, for plaintiff in error. Eldridge Gutts, contra.