Ellis v. Lockett , 100 Ga. 719 ( 1897 )

Cobb, Justice.

1. 'When a Tendee seeks to avoid the payment of the-purchase money of land in defense -to a suit brought by the-vendor agaiuslt him, on the ground that the vendor had no title at the time the deed was executed, and where the vendee is in undisputed possession under such deed, it is encumibenit upon him in his plea to set up such facts as would show -that the vendor ihlad no title. If there are several, ways in which the venidtor’s titile ibo the premises could have-been acquired, a plea of want of title in defense to a suit for the purchase money would be fatally defective, if it failed, to negative every fact which would be consistent with title-in the vendor. The vendor might have title by a chain beginning with a grant'from the State; or where the- title; originates -with a municipal corporation, by a chain beginning with that corporation; or a title by possession and prescription. Therefore where -the vendee pleads want of title,, ho must show, -mat only that his vendor did moit have a complete paper title, hut he must negative facts which would show title by prescription. In this case one of the defendant’s pleas setting up want of title shows that the vendor-did not have a complete chain of title, either from the State, or from the city of Macon, hut did show conveyances, to tire vendor and his predecessors in title extending hack •to May 5, 1873. The plea did not allege that the vendor- and his jtredecessors in title were not in iiossession under these deeds; and as possession consistent with them for the period between 'the date of the sale 'and May 5, 1873, would have made a good prescriptive title in the vendor, a plea failing to negative this fact was defective, and properly stricken on demurrer.

2. In the sale of land it is competent for the parties io< contract for a title of a particular kind and character, although a title of a different character would be, under the. law, good. In the absence of a stipulation for a particular-kind and character of title, a good title, under the law, would be held to be all that was contemplated hy the parties to the-contract. -But if the parties stipulate for a title of a. different kind, then 'they are bound by their stipulation, but it must clearly appear from the contract in what respect, the title contracted for -differs in kind and character from, that considered good raider the 1-aw. Therefore, it would be perfectly competent for (the vendor ¡and ¡the vendee to -stipulate that the title of the vendor should be such as-would be pronounced good and merchantable by any reputable attorney in ¡a named city. If the vendor or 'bis agent-represented at the time of the negotiation that the title would be -of this -character, -or knew that the vendee was intending to purchase only upon condition that the title w-as of this-character, ¡then a failure to give to ¡the vendee- a title -of the-kind -and character contracted for would be a defense to a suit for the purchase money. The pleas in this case fail tosho-w that there was an express stipulation between ¡the vendor’s agent and ¡the vendee for ¡a -title ¡other than one which would be considered go-od land sufficient (in law; -and they further fail -to show with sufficient clearness that the vendee.intended to purchase only upon condition that a particular-kind and character of title would be given, and that this-intention was known to the vendor’s agent so as to become a part of the contract. There was no error in striking the-plea on demurrer, as the same did not allege anything which, would show that the defendant’s title would not be good, under the law.

3. The character of wia-rranlty which the vendor would give to the vend-ee in the sale of land is a matter purely f or stipulation, and if 'the vendor agrees at the time -of ithe purchase to deliver to the vendee a deed which contains a warranty ¡of a specified character, -then a failure to give the¡ warranty would be a sufficient reason for 'the vendee to refuse to receive the deed; but where it appears from the allegations in the plea setting up a failure -on the part of the-vendor to comply with his contract as to- the warranty agreed-. to be given, .that tbe vendee accepted tbe deed with the warranty different from that which had been agreed upon, and ■went into possession, he could not afterwards, when sued for the purchase money, set up -the fact that the deed failed to contain the warranty which -had been contracted for. His acceptance of the deed and the possession under it would .amount to a waiver of his right to complain in regard to this matter. While in this case it is probable that the warranty .-stipulated for, that is, one by the trustee which would bind the trust estate, could not be legally given, still as the vendee .accepted the -deed without the warranty, it is not necessary to decide the question as to whether a trustee can bind the trust estate by a covenant of warranty. He certainly cannot, without au order from the judge of the superior court

.authorizing it. Shacklett v. Ransom, 54 Ga. 350, 353.

Jlodgment -affirmed.

All the Justiees emicwrmvg.