Jones v. Clemons

133 S.E. 744, 35 Ga. App. 552, 1926 Ga. App. LEXIS 975

• Court: Court of Appeals of Georgia
• Decided: June 18, 1926
• Docket: 16929
• Status: Published

Opinion

Bell, J.

1. Where an owner sells land and executes a bond to make title on payment of the purchase-money, and thereafter conveys the land to a third person to secure his own debt and without stipulating or providing that the conveyance is subject to his prior bond for title, he commits a breach of the bond. Gibson v. Carreker, 91 Ga. 617 (17 S. E. 965) ; Cumming v. McDade, 118 Ga. 612, 614 (45 S. E. 479) ; Peterson v. Harper, 13 Ga. App. 112 (2) (78 S. E. 942).

2. In such a ease the vendee may elect either to sue the vendor for damages or to treat the contract as rescinded and sue for such sum as will restore the status. Buck v. Duvall, 9 Ga. App. 656 (72 S. E. 44) ; s. c.. 11 Ga. App. 853 (76 S. E. 1053). In the present case the vendee elected to treat the contract as rescinded.

3. Although the vendee, being in possession, could have stood his ground and defeated the claim of the holder of the security deed (see Civil Code (1910), § 4528; Burr v. Toomer, 103 Ga. 159 (29 S. E. 692) ; Ga. State Bldg. & Loan Asso. v. Faison, 114 Ga. 655 (40 S. E. 760); Gholston v. N. E. Banking Co., 158 Ga. 291 (123 S. E. Ill, 35 A. L. R. 23) ), he was not compelled to do so, since the act of his vendor amounted to a repudiation of the contract and operated to cast a cloud upon the vendee’s interest in the property. Adams v. Bridges, 141 Ga. 418 (c) (81 S. E. 203) ; Hinton v. McBride, 147 Ga. 603 (2) (95 S. E. 1) ; Thompson v. Etowah Iron Co., 91 Ga. 538 (17 S. E. 663).

Decided June 18, 1926. Julius Rink, R. M. W. Glenn, and Rosser & Shaw, for plaintiff. McClure & McClure, M. Neil Andrews, for defendants.

4. Under the pleadings and the evidence a substantial recovery by the plaintiff would have been authorized. It follows that the court erred in directing a verdict for the defendants.

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur.