Protestant Episcopal Church of Diocese v. Lowe Co. , 131 Ga. 666 ( 1908 )

Evans,' P. J.

(After stating the facts.)

The court erred in striking the claimant’s equitable petition in aid of its claim. A purchase-money mortgage, executed with the deed of purchase, excludes any claim or lien arising through the mortgagor. It makes no difference that the purchase-money mortgage may be made to a third person who advances the purchase-money at the time the purchaser receives his conveyance. Such mortgage is entitled to the same preference. over a prior judgment as it would have had if it had been executed to the vendor himself, where it appears that all the acts of the parties are parts of one transaction. In its legal effect it is the same as though the purchaser had executed a mortgage to the vendor for the purchase-money, and had assigned it to the party advancing the money. Scott v. Warren, 21 Ga. 408; Rasin v. Swann, 79 Ga. 703 (4 S. E. 882); Jones on Mortgages, §§470, 472. This applies as well where a part of the purchase-money is paid, and the mortgage is to secure the balance, as where none of the purchase-money is paid and the mortgage is for the whole. Courson v. Walker, 94 Ga. 175 (21 S. E. 287). The principle is the same whether the form of security be a mortgage or a deed to secure a debt. Achey v. Coleman, 92 Ga. 745 (19 S. E. 710). The ease of Huie v. Loud, 38 Ga. 191, is not opposed to this .view. In that case it appeared that Mangum had purchased of Waldrop a tract of land on time, giving his note for the purchase-money,, and taking the vendor’s bond for titles, went into possession, and made valuable improvements upon the land; and afterwards Mrs. Loud purchased the property from Mangum, and paid the original purchase-money to Waldrop, the original vendor, who executed a deed to Mangum, and Mangum executed a deed to Mrs. Loud, receiving the purchase-money from her. Subsequently the land was levied on to satisfy a judgment against Man-gum; and Mrs. Loud filed her bill in equity to enjoin the sale, on the ground that the land was not subject to be sold under this judgment. It was held that the court should have decreed a sale of the property, and from the proceeds Mrs. Loud should be first paid the amount of the original purchase-money to which Waldrop would have been entitled under his contract, with interest to the time of sale, and the balance be applied to Mangum’s judgment creditors. The superiority of the purchase-money claim over the judgment lien was distinctly recognized; but as the interest of a vendee under bond for title was leviable at that time, the land was ordered to be sold. Since the rendition of that decision the act of 1894 was passed (Civil Code, §§5432-5434), and now the interest of an obligee in a bond for title is not subject to levy without first tendering the amount due upon the purchase-money. Burkhalter v. Durden, 122 Ga. 427 (50 S. E. 144); Shumate v. McLendon, 120 Ga. 397 (48 S. E. 10). The only differences in the case now before us, and that of Achey v. Coleman, supra, are that in the Achey ease it did not appear that any part of the purchase-money had been paid by the obligee in the original bond; and in that case there was but one obligee in the bond for title, while in the present case there were two obligees in the original bond for titles, and but one of these made the deed of conveyance to the claimant, the other having made her deed to the claimant’s grantor. It was said in the opinion'in the Achey case, that “the existence of their [plaintiffs in fi. fa.] judgments when the title passed through the debtor gáve them no hold upon it to the exclusion of one who paid for the land and took the title as a part of the same transaction by which the debtor obtained title, both deeds going into effect together upon that person’s payment of the purchase-money.” The test therefore seems .to be whether the transfer of title is one and the same transaction, rather than the form in which or the person through whom the transfer occurs. The equitable petition in aid of the claim alleged thatoall these deeds were delivered at one and the same time, and as parts of one and the same transaction, and for the sole purpose of putting the title into claimant in order to induce it to advance the purchase-money, and that all the money so advanced was paid to Mrs. Miller in settlement of the balance due on the purchase-money. Under these circumstances the plaintiff in fi. fa. could not levy its fi. fa. upon the property, to satisfy a claim against Mrs. Lillie Greer, until it had tendered to the claimant the amount of its debt.

It is unnecessary to discuss the general grounds of the motion for a new trial, as claimant was cut off from the introduction of proof of its plea when the same was stricken.

Judgment reversed.

All the Justices concur.