Smith v. Hudson

45 Ga. 208

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

Opinion

McCay, Judge.

Nothing is better settled than that the vendee of land, with a warrantee of title, cannot plead a want of title in his vendor so long as he is undisturbed in the possession, unless he shows some good reason why his warranty will not protect him; and this for two good reasons: one, that however good the outstanding title may be, still, it may never be enforced; the other, that he has chosen his remedy by taking the warranty, and he must abide by his own choice.

We do not feel called upon to decide whether this outstanding title is paramount or not. The verdict is right under the evidence in any event. The complainant filed a bill to enforce her vendor’s lien for the purchase-money. The defendant sets up an outstanding title in the reversioners, and that the complainant is insolvent. Very clearly, this last defense is not in response to any charges in the bill. It fell upon the defendant to prove it. This he utterly failed to do. The answer was on this point no evidence, and there was absolutely no evidence on the point against her solvency. Hence, in any view of the case, the verdict is right. There is no reason shown by the proof why the warranty is not a full protection against the claims the defendant says exist.

It is apparent, too, that this old lady ought to have her money. She has practiced no deception on the defendant. He bought with his eyes open.

Judgment affirmed.