Leach v. Rogers

28 Ga. 247

• Court: Supreme Court of Georgia
• Decided: March 15, 1859
• Status: Published

Opinion

By the Court.

McDonald, J.,

delivering the opinion.

The plaintiff had purchased the brick yard place of the -defendant, and paid him for it in work, and the defendant, more than once agreed to make a title to one of- the witnesses, Tredaway, to whom the plaintiff had exchanged the brickyard place for other land. The value of the land for which it was exchanged was four hundred and twenty dollars. The price paid for the brick yard place in work* was three hundred and fifty dollars. The plaintiff removed from the county, and the land which he had received in exchange for the brick yard place, was attached as his property and sold by the sheriff. Tredaway, not having been able to obtain from Rogers a title to the brick yard property, which he acknowledged the plaintiff had paid him for, gave notice at the sheriff’s sale.that he had a vendor’s lien of four hundred and twenty dollars, on the land. It was sold subject to this lien, and the defendant, Rogers, bought it at the price of $103. The lien claimed by Tredaway, resulted from the refusal of the defendant, Rogers, to execute the title to Tredaway, for the brick yard place. If he had executed that title, there would have been no lien, and if there had been no lien, there could have been no notice of a lien at the sheriff’s sale, and if there had been no notice, the plaintiff’s land must have sold for five hundred and twenty-three dollars, and he would have had, or been entitled, to that sum for his land. As it is, ho received a benefit amounting to only one hundred and three dollars, and the defendant never paid him for his work. After the defendant purchased the land he agreed to make Treadaway a deed to the brick yard place for'the vendor’s lien which he held on the land, and to extinguish that, Rogers made a title to Treadaway of the brick yard place, which, according to the evidence, the plaintiff having paid him for it, he held in trust for, and was bound to convey to the plaintiff Treadaway had put an end to his claim in the brick yard property by giving notice of his vendor’s lieu ; by that act. the right to a title reverted to the plaintiff, Leach. I see no reason myself, why he could not enforce his right in a court of chancery and compel a- specific performance of that contract as the parties all had notice. But he, unquestionably, has the right to affirm all these proceedings by the parties, and claim payment from Rogers of his account.

"We think the cause ought to have gone to the jury. It is clear the account had never been paid. The judgment of the court bdlow must be reversed.

Judgment reversed.