Chalker v. Usry , 138 Ga. 673 ( 1912 )

Beck, J.

(After stating the facts.) Treating this as an action for the recovery of land by the plaintiff as the head of a family, and not as an action for the recovery of land by the plaintiff individually, we. are of the opinion that the plaintiff could not recover the land. The homestead property referred to in the petition had been properly sold; an order had been granted by the judge of the superior court for the reinvestment of the funds arising from the sale of homestead property in a certain designated and described tract of land; the plaintiff invested the proceeds of the sale of the homestead property in the land contemplated and designated as the property to be purchased in the order for the sale of the homestead. But with the proceeds of the sale of the homestead property only a partial payment of the purchase-price of the acquired property could be made, and the vendor of the property sought to be acquired in the purchase made to the vendee, the plaintiff in this ease, a bond for title and took for the unpaid balance of the purchase-money the promissory note of the vendee. The vendee could take, by virtue of the transaction between himself and the vendor of this land, only that interest in the land which was contemplated in the trade between them and which was embodied in the written instrument executed by the vendor, the bond for title. The vendee acquired only an equity, a right to have the title vested in him by a written instrument upon his compliance with the condition in the bond for title. He did not as an individual or as a trustee acquire a title which could be the basis of an action for the recovery of land. The vendor, who took a promissory note for the unpaid part of the purchase-money, had the right, under our statute, to sue on the note to judgment; and it is admitted in the agreed statement of facts that there was a lawful judgment rendered on the note; and he had the right to enforce that judgment by levy and sale, after executing to the vendee the escrow deed provided by the statute, which put title in the vendee for the sole purpose of effecting the transmission of title by the judicial sale. The judgment rendered by the court was unauthorized by the evidence; this being an equitable suit for the recovery of land, and not a proceeding instituted to trace and recover trust funds which had been diverted or misapplied.

Judgment reversed.

All the Justices concur.