Alston v. Wingfield , 53 Ga. 18 ( 1874 )

McCay, Judge.

1. This court is committed by numerous decisions to the general doctrine that in the case of the executory sale of land where the purchase money is not paid and no deed made, but only a bond for titles given, conditioned to be void if the vendor make titles on the payment of the notes; that the title, and therefore the right to sue and recover in ejectment, remains in the vendor until the purchase money is all paid: Solomons vs. Day, 40 Georgia, 32; Thompkins vs. Williams, 19 Ibid., 569; Day, ex dem., Miller vs. Swift, 39 Ibid, 91; Ware vs. Jackson, 19 Ibid., 452; Mellan vs. Stansell, 39 Ibid., 197. And this works no wrong to the vendee, at least as between him and the purchaser, for he can always in equity, and perhaps under the Code, at law, pay, or offer to pay, by bringing the money into court, the amount due, and demand his title. We have looked into the cases referred to by the plaintiff’s counsel, but we do not think they meet his case. The references to Tyler on Ejectment are, as we understand them, in harmony with the doctrine we insist upon in the case of executory contracts for the sale of land. There are, doubtless, special rules applicable to the relation of landlord and tenant, but they stand upon their own nature. In the case of a vendor of land who has given bond for titles on the payment of the purchase money, the very purpose of retaining the title is to protect himself by insisting on his legal right. We recognize that if the vendee pays or' makes improvements, that he has an equity, even after condition broken, to pay the balance and demand a title. But the vendor’s right is the legal title, and, therefore, the legal right to the possession, unless the vendee comply with the bargain on his part. The land, until the purchase money is all paid, is legally the property of the vendor, and subject to be sold under a judgment against him, even’though that judgment be obtained after the date of the bond.

2. We are not prepared to say that if a new day of payment were definitely and legally agreed upon, that the right to sue might not be waived; but that ought to definitely and distinctly appear. Northing appears here but a stipulation for ten per cent, interest until paid. That fixes no new day. The holder of the notes is not prevented from suing next day. An agreement to fix a new day, and thus extend the terms of the bond, is, in effect, an agreement in relation to the sale of laud, or an interest therein, and ought to be in writing, under the statute of frauds. It is not pretended that it was in-writing, or that it was intended to be in writing. The truth is, that the agreement, if one there was,, was, in its nature, so loose that it was obviously impossible to put it in writing. At any rate, it was nothing but a parol agreement.

3. We do not see what the bankruptcy of the plaintiff in error has to do with this case. The verdict in ejectment, by the superior court, ousted him of the land. If anybody has a right to object to the prosecution of this case here, it is the defendant in error. He is not acting — he is the sufferer— he is not proceeding. On the whole, we affirm the judgment-

judgment affirmed.