Doe ex dem. Miller v. Roe , 39 Ga. 91 ( 1869 )

Warner, J.

This was an action of ejectment brought by the plaintiff to recover the possession of a certain lot in the town of Uithonia, containing six acres, and certain other lands which Miller, the plaintiff’s lessor, alleges he had purchased from Swift, the tenant in possession, in July, 1863. It appears from the record that Miller purchased the premises in dispute from Swift, paid part of the purchase-money, and gave his notes to Swift for the balance of the purchase-money, and that Swift made and delivered to Miller his bond, conditioned to make a title to the land to Miller when- he should pity the notes given therefor. On the trial of the case in the Court below, upon the evidence offered by the plaintiff, in support of his legal right to recover the premises sued for, the Court non-suited the plaintiff, which decision of the Court is now assigned for error here. Whatever may be the existing equities between the contracting parties growing out of their trade for the land, and their subsequent attempt to rescind the contract therefor, we express no opinion ; but we are all very clear in our judgment that the plaintiff cannot maintain his action of ejectment, to recover the possession of the land against his vendor, until the purchase-money therefor has been paid ; or, at least, until an unconditional tender thereof has been made by the purchaser, to the vendor. It is admitted that all the purchase-money due for the land, has not been paid, but the plaintiff relies upon a tender thereof, as set forth in the record. In our judgment, the facts, as proved by Mr. Winn, do not, in law, amount to a legal tender of the balance of the purchase-money due by Miller to Swift for the land: See Code, sec. 2823; Cothran vs. Scanlan, 34 Ga. R., 555.

Speaking for myself, I think this Court has gone quite far enough in holding that a party, who holds a bond for titles, and has paid all the purchase-money, can maintain an action of ejectment upon that title for the recovery of the land. In our judgment, there was no error in the Court below in granting the non-suit upon the facts contained in this record.

Let the judgment of the Court below be affirmed.