Maisler v. Etheridge

Jenkins, P. J.

1. “The maker of promissory notes given for the purchase of land of which such maker holds undisturbed possession under a bond from the vendor, conditioned to make to the former a good and sufficient title to the land upon payment of the notes, can neither voluntarily rescind the contract of purchase nor defeat the collection of the notes, upon the ground that the vendor lias not in fact a good title to the land in question, without showing clearly that there is a paramount outstanding title against the vendor, and also proving fraud upon his part, or that he is insolvent, or a non-resident, or else proving other facts which would authorize equitable interference with the carrying out of the contract as made.” Black v. Walker, 98 Ga. 31 (1) (26 S. E. 477).

Decided February 6, 1929. B. L. Milling, Aldine Chambers, for plaintiff in error. Paul S. Etheridge, contra.

2. In the instant ease the judge of the superior court did not err in entering up final judgment in favor of the plaintiff, on certiorari taken to the findings of the appellate division of the municipal court setting aside a judgment in favor of the defendant, since there was no merit in the defense pleaded. While the defendant shows that he voluntarily abandoned the property for which the purchase-money notes were given, on discovering that the vendor held only a bond for title to the property, instead of having a deed, as it is alleged had been represented, the plea fails to show a paramount outstanding title against the vendor, and contains no allegation setting up fraud, since it is nowhere made to appear that the vendor was not ready, willing, and able to perform his obligation under the bond on compliance by the vendee with his own obligation. Judgment affirmed.

Stephens and Bell, JJ., concur.