Gafford v. Twitty , 154 Ga. 682 ( 1922 )

Beck, P. J.

(After stating the foregoing facts.)

The court did not err in sustaining the motion of the defendant Gafford to dismiss the plaintiff’s petition as to him. He was not subject to the obligation of the contract of sale. As transferee of the bond he would have been entitled, upon completing the payments of the purchase-money, to enforce the bond by specific performance had the vendor refused to convey. If the assignee of the vendee of the property had assumed or agreed to assume the debt due petitioner for the purchase of the property, upon proper allegations thereof he would have been jointly liable in the suit to the original vendee. But in the absence of a proper allegation showing that the transferee of the bond for title had assumed the debt due the petitioner by the vendee, the petition was demurrable generally on the ground that it did not set forth a cause of action against the transferee. Couch v. Crane, 142 Ga. 22 (82 S. E. 459). In the petition in the case just cited there was an allegation that the defendant, the transferee, “assumed or agreed, to' assume the debts due petitioner [the obligor in the bond],” and it was also shown in that case that the transferee of the bond had entered into possession of the property, just as in the present case. But it was there held that the allegation of the assumption of the debt by the transferee of the bond was open to attack by special demurrer; as the defendant was entitled to specific allegations on this point, that is, allegations showing clearly the assumption of the debt, and how the transferee of the bond became liable for it. Counsel for the plaintiff in this case relies upon the ease of Morgan v. Argard, 148 Ga. 123 (95 S. E. 986); but this latter decision does not change or modify the ruling in the case of Couch v. Crane, supra. The facts in the two cases are different. The ruling in the case of Morgan v. Argard is-based upon the alleged fact, in addition to the facts in the present case, that the transferee of the bond for title had assumed and agreed to pay the balance of the purchase-money. In this latter case it was said: “Where a vendor executed and delivered his bond conditioned to make to his vendee a good and sufficient title to certain land upon the payment of the balance of the purchase-money, and the vendee for a valuable consideration transferred the bond, together with his interest in the land, to a third person who assumed and agreed to pay the balance of the purchase-money, the vendor, not being a party to the contract, can not in an action at law enforce the promise of the third person. Nevertheless, in such a case, the vendor may maintain an equitable action against the vendee and his transferee, in the county of the latter’s residence, to recover a judgment for the balance of the purchase-money, with a special lien upon the land. A court of equity, in order to grant full and adequate relief, having before it as parties the three persons referred to, may adjust in one suit the rights of all of them. The ruling in Baker v. City National Bank, 94 Ga. 87 (2), 88 (21 S. E. 159), considered and distinguished.”

The court having, upon motion of Gafford, one of the joint defendants, sustained his general demurrer to the petition, he was thereby eliminated as a party from the case. This was done upon his own motion. And having secured by general demurrer the benefit of dismissal from the case as one of the joint defendants, he could not then urge the defense set up in his plea and answer, nor was he thereafter entitled to urge that part of his answer which was in the nature of a cross-action. It is unnecessary to discuss whether or not, if he had not himself secured his dismissal from the case as one of the joint, defendants, he might have urged and maintained the cross-action. It sufficiently disposes of the issues of this case to rule that when he took himself out of the case as a defendant, he took himself altogether out of the case. He left the case standing as one between the petitioner and her vendee; and he could not, in a case between those two parties, have his rights as against the petitioner or her agent adjudicated. He could not put himself in a position where he would be shielded from attack, and yet use that position as vantage ground from which to attack the party who had offered to join issue with him. . If there was upon the part of the vendor, or of one who was her agent duly authorized to act for her in the matter, such fraud and wilful misrepresentation of material facts, made to induce the defendant GafforcL to act, and he did act thereon to his injury, and in other respects he brings himself within the provisions of sections 4409 and 4410 of the Civil Code, which give a right of action for fraud and deceit, it may be that he can maintain his action against the vendor, or the vendor and her agent; but upon that question we do-not now pass.

It follows from what we have said above, that the judgment of the court below is affirmed upon both the'main bill and the cross-bill of exceptions.

All the Justices concur.