Shumate v. McLendon , 120 Ga. 396 ( 1904 )

Cobb, J.

(After stating tbe foregoing facts.) It was held in an early ease that where land was sold, and the vendee held under bond for titles, with a portion of the purchase-money paid, both the vendor and the vendee had a leviable interest in the land, represented by the balance due on the purchase-money in the one instance, and by the purchase-money paid in the other; and that a purchaser at the sale would obtain such an interest in the land as would give him a right to call for the balance of the purchase-money, or to pay the balance of the purchase-money and demand a conveyance, according to whether the vendor’s or the vendee’s interest had been seized under the execution. See Wilkerson v. Burr, 10 Ga. 117, and cases cited in Van Epps’ annotations. In 1875 the General Assembly, recognizing the inconvenience incident to such sales, passed an act which provided that where any of the purchase-money had been paid, the entire interest stipulated in the bond might be seized and sold under an execution against the vendee, and the proceeds of the sale so appropriated as to discharge first the amount due on the purchase-money, and the balance distributed as the property of the vendee. Code of 1882, § 3586. This provision of the Code of 1882 was superseded by the act of 1894, providing for a levy upon and sale of property where the defendant in execution has an interest therein and does not hold the legal title (Acts 1894, p. 100). Green v. Hill, 101 Ga. 258. It was accordingly held, in the case just cited, that since the passage of the act of 1894, one holding land under a bond for titles had no leviable interest therein, without reference to whether any portion of the purchase-money was paid, until he became invested with the legal title to the land. See also Black v. Coffin Company, 115 Ga. 15. The section above cited was not carried into the Code of 1895, and the act of 1894 is now embraced within the provisions of the Civil Code, §§5432 — 5434. Such is the present state of the law in reference to the remedy to be pursued by the holder of a judgment lien against one who, as a purchaser, holds an interest in the land under a bond for titles.

The security deed first made its appearance in our law in 1871, and it would seem, upon principle, that the status of the parties to such a conveyance would have been the same as in the case of a vendor and vendee under a bond for titles, each having a leviable interest in the land, — the creditor to the extent of his debt, the debtor to the extent of his interest represented by the difference between the value of the land and the debt, — and that the purchaser would, in the one instance, acquire the right to collect the debt, and in the other instance the right to pay the debt and secure a conveyance of the land. That the grantee in a security deed, being vested with the legal title, has a leviable interest in the land, and that a purchaser at sheriff’s sale under such a levy would acquire the right to collect the debt, was recognized by this court in Parrott v. Baker, 82 Ga. 364 (3). But in Jarvis v. Burke, 59 Ga. 232, a case decided in 1877, only a few years after the security deed first made its appearance in our law, it was held that before a subsequent judgment creditor of the grantor in such a deed could subject the land, it would be necessary to redeem. And in Phinizy v. Clark, 62 Ga. 623, it was distinctly held that as the grantor in a security deed divested himself of the legal title, he had no interest in the land which could be seized on execution, and that a purchaser at a sale, where his interest was attempted to be seized, acquired no title; that until there was a redemption, by the debtor, or by some one claiming under him, he had no such interest in the land as was subject to levy and sale. These decisions have been steadfastly adhered to. See Osborne v. Hill, 91 Ga. 138 (2); Swift v. Lucas, 92 Ga. 796; Jordan v. Loan Assn., 108 Ga. 495; Ashley v. Cook, 109 Ga. 656, and cit. Prior to the act of 1894, while it was settled law that a subsequent judgment creditor of the grantor in a security deed could not subject the land to the payment of his execution until there had been a redemption, there was no method provided for a redemption by such a judgment creditor until that act was passed. That act did not change the interest of the grantor in the land, but simply provided a method by which a judgment creditor of the grantor might subject such interest to the payment of his debt. There never has been a time, since the security deed made its appearance, when a subsequent judgment creditor of the grantor could lawfully levy upon the land prior to redemption; and as long as the debt secured, or any portion of it, remained unpaid, the land was unredeemed. Redemption could be accomplished only by payment, and payment in full. Lapse of time, even to the extent that all legal remedies of the creditor would be barred, would not operate as a redemption of the land and revest the title in the grantor or his heirs. Duke v. Story, 116 Ga. 388. Until the debt is actually paid, and paid in full, the legal title remains vested in the grantee; and if he is the owner of the debt, it remains vested in him for his own benefit. If he has assigned the debt but has not transferred the title, he holds the legal title for the benefit of the owner of the debt, whoever he may be, until it is discharged by payment. Henry v. McAllister, 93 Ga. 668 (2). See also Van Pelt v. Hurt, 97 Ga. 660; Sheppard v. Reese, 114 Ga. 411, 413-414. Redemption is indispensably necessary before the legal title can be revested in the grantor, and actual payment is essential, both at law and in equity, to bring about redemption. Even if it ever was the law, as was intimated in Osborne v. Hill, 91 Ga. 138, that a repayment of a part of the debt would give the grantor in a security deed a leviable interest in the land, and that even where the grantor had paid no part, of the debt a purchaser at a sheriff’s sale under a subsequent judgment against him would acquire the debtor’s right to redeem by paying the money to the lender, such is not the law since the passage of the act of 1894.

Let these principles be applied to the facts of the present case. At the date of the sheriff’s sale under the Hill execution the debt due the Bank of Washington had not been paid in full. The land had, therefore, not been redeemed. Isaac McLendon had no leviable interest therein, and Sims & Truitt, the purchasers, acquired no-title'to any interest in the land, and therefore no interest in the land passed to Mary McLendon under their deed. By the assignment of the execution of the bank against Isaac McLendon, Sims & Truitt became the owners of the debt then due to the bank, and by their assignment to Mary McLendon she became the owner of the debt against her husband, and acquired the right to collect whatever was the balance due on the same at the time of the transfer to her. While the judgment thus transferred to her has become dead, and can not be revived, and the debt upon which the judgment was based is long since barred, still, so far as the present record discloses, the balance due on the Bank of Washington debt at the time of the transfer of the execution to Mary McLendon has never been paid, either by Isaac McLendon, his heirs, his creditors, or any one else. There has, therefore,'been no redemption. The. title to the land is still vested in the Bank of Washington, and until this title becomes revested by payment of the balance due on the debt to the legal representatives or heirs of Mary McLendon, there is no leviable interest in the land in the heirs or légal representatives of Isaac McLendon, and the levy of the Shumate execution was an absolute nullity. See, in this connection, Moss v. Stokely, 107 Ga. 233. The record does not disclose who was in possession of the land in dispute at the date of the levy. It does appear that Mary McLendon died in possession, and it might be inferred from .this that her heirs, the claimant among them, were in possession. But without reference to this, the burden was upon the plaintiff in execution to show that the defendant in execution had a leviable interest in the land. He might have shifted this burden by showing title in the intestate of the defendant in execution, or possession in the latter since the judgment. Civil Code, §4624; Primrose v. Browning, 56 Ga. 369; Coleman v. Rice, 105 Ga. 164; Southern Mining Company v. Brown, 107 Ga. 266. Isaac McLendon was dead when the judgment was revived, and it does not appear that his administrator was ever in possession. The plaintiff in execution was therefore required to show a legal title, or at least a leviable interest in the land in the defendant in execution at the date of the levy, and this he .has failed to do. The plaintiff in execution failed to carry the burden imposed upon him by the law, and the claimant was not put upon proof of his title. The court, therefore, did not err in holding that the land was not subject to the execution. The homestead never having attached to any interest in the land, except Isaac McLendon’s equity of redemption, under the view we have taken of the case any questions relating to the homestead are immaterial to the present controversy.

Judgment on main bill of exceptions affirmed; cross-bill dismissed.

All the Justices concur.