Clark v. Havard

50 S.E. 108, 122 Ga. 273, 1905 Ga. LEXIS 172

• Court: Supreme Court of Georgia
• Decided: March 4, 1905
• Status: Published

Opinion

Cobb, J„

The grantee in a security deed may sue the debt to judgment and cause the land to be levied upon and sold after a reconveyance to the debtor, or he may bring an action to recover possession of the land upon the title derived from the security deed. He may pursue these remedies concurrently, and neither is an obstacle in the way of the other until the debt has been fully satisfied under the operation of one or the other proceeding. Ray v. Pitman, 119 Ga. 678, 681, and cit. A transfer of the debt by the grantee does not, in the absence of a conveyance, pass to the transferee "title to the land. Sheppard v. Reese, 114 Ga. 411 (2). But as a result of such transfer the transferee acquires an equitable interest in- the security effectuated by the deed. Van Pelt v. Hurt, 97 Ga. 660 (2). After the debt has been transferred the grantee in the security deed holds the title for the benefit of the transferee. Shumate v. McLendon, 120 Ga. 397 (10). The transferee may proceed to collect the debt by' obtaining judgment and causing a levy to be made on the land after a reconveyance by the grantee; or he may in equity accomplish the same result by a proceeding against the debtor and the grantee, and in such a proceeding he may obtain a decree providing for a sale of the land and the payment of the debt, or for a recovery of the possession of the land, to be held for the same purpose and to the same extent as the grantee could have recovered it if he had not transferred the debt. At law the transferee is the owner of the debt, but not the owner of the land. In equity he is the owner hoth of the land and the debt If a court of equity has taken jurisdiction at the instance of the transferee, for the purpose of allowing him to assert his equitable title to the land, he may make such parties and ask such decree as may be necessary and proper to make the assertion of his equitable. right complete. Hence, if there are third persons asserting title which can not be legally or equitably asserted as against the transferee, and such parties are colluding for the purpose of delaying and hindering him in the pursuit of the remedies which equity will afford him to obtain satisfaction of his debt, a petition making these persons parties and setting forth sufficient facts to enable the court to render a decree which would make effective the assertion of the plaintiff’s right to the land would not be multifarious. Conley v. Buck, 100 Ga. 187; Ernest v. Merritt, 107 Ga. 61. Applying these principles to the case under consideration, it is clear that the plaintiff did' not have legal title to the land, but did, by the transfer of the debt, obtain an equitable interest in the security, and therefore such an equitable title to the land as was necessary to enable her to, assert her equitable interest in the land. The promise made by Thomas Clark to Barnett, to convey his interest in the land to his wife, and his failure to comply with his promise, .together with his use of a portion of the money loaned to Mrs. Clark to pay off an incumbrance on his land, was such a fraud that, as, between him and Barnett, he would be clearly estopped from asserting title to. the-land after Barnett acted on the faith of this promise; and this estoppel could be taken advantage of by the ■ Security Investment Company, or its transferee, each of whom parted with money upon the representation of Barnett that the title was in Amanda Clark. The Security Investment Company would have a right of action against Barnett, if he stated to it that the title was in Amanda Clark when he knew it was not; and as Thomas Clark would be es-topped from asserting title against Barnett, there is no good reason why this estoppel could not be available' by those who had acted upon the statement of Barnett which was founded upon the promise of Clark. The daughter of Amanda Clark, who claimed title under a conveyance executed after the. security deed, and who had at least constructive notice of the security deed, had no right to assert the title which she obtained as against the legal title of the Sequrity Investment Company or the equitable title of its transferee. It was alleged that the three Clarks were insolvent, and the allegations of the petition were sufficient' to show that they had colluded and conspired to defeat the plaintiff in the collection of her debt. There was equity in the petition, and it was not subject to any of the objections raised -in either of the demurrers which were filed.

Judgment affirmed.

All the Justices concur.