Branton v. Bush , 32 Ga. 669 ( 1861 )

By the Court.

Lyoit, J.,

delivering the opinion.

The bill alleges that William J. and Jasper Dickson bought of Jesse Williams the tract of land in dispute for $1,600 00, and gave their notes therefor in three installments, and Williams executed to the Dicksons his bond for titles, to be made on payment of the purchase money; that after the payment of one of the notes, the Dicksons sold their interest in the land to complainant, and transferred to him Williams’ bond for titles; that on application to Williams to pay the balance of the purchase money, complainant was informed by him that he had transferred one of the notes to Stafford, and the other to his son, William Williams, and had conveyed to him titles to the land as a security for the payment of the notes, etc.; that he subsequently paid the note held by Stafford, and also the one held by Williams, who thereupon executed a deed to him for the land in execution of the bond ; that after the Dicksons had sold and transferred their interest in the land to complainant, and after Jesse Williams had assigned the two notes last due, given by the Dicksons for the land, to Stafford and his son, and after complainant had tendered to Jesse Williams payment of Dicksons’ notes, and could not because of the transfer and conveyance of the land, etc., but before William Williams had executed the deed to complainant, the judgment was obtained, etc., from which the execution issued that had been levied on the land, etc.

If these facts are true, they form a complete defence to the levy on the land, and can be sot up at law on the trial of the claim as completely as in equity. If so, the land is not subject to the execution. There is no necessity for resorting to the consciences of defendants for discovery. For when it is shown that Williams had bargained the land to the Dicksons, taken their notes, and given his bond for titles, before judgment was obtained, the onus will be on the plaintiff in execution, on the trial of the claim cause, to show that at the date of the judgment the defendant in execution had a tenable interest in the land, and what that was. Hence, the bill should have been dismissed for the want of equity.

Let the judgment be reversed.