Field v. Martin

46 Ga. 99

• Court: Supreme Court of Georgia
• Decided: July 15, 1872
• Status: Published

Opinion

McCay, Judge.

The purchase of this land by Field and Nichols from Martin was a joint purchase, according to the bond and note, and there is nothing in the evidence to contradict this. As soon as the papers were executed, the vendees became jointly interested in the land, according to the bargain. That one of them has paid all the money does not alter their relative legal rights to the land. The bond was to both, the obligation to make the title is to both, and a title to one would not have been a compliance with the obligation of the bond. This is what was demanded by Field, and this is what the defendant refused to perform. There was no proof of a breach of the bond. The demand of Fields was not in accordance with its terms, and a compliance with the demand would have left the obligor subject to an action on the part of Nichols or his representatives.

We will not say that Field may not, as survivor, bring an action on the bond, but he must show a breach of the bond, to-wit: a refusal to make titles according to its terms, or show some consent or agreement, on the part of Nichols, that a title to Field, alone, will satisfy the bond.

Very clearly, this case cannot go on in Nichols’ name if he be dead. If his name is important for any purpose and he be dead, the suit cannot go to judgment. A dead man cannot be a party to a suit.

Judgment affirmed.