Faircloth v. St. Johns

McCay, Judge. 1. The debt on which this fi.fa. was founded was the debt of Settle. Faircloth was only liable as indorser. As to Settle, it was given for the purchase of the land, and as to him and his family, it would be superior to the homestead, should' one be claimed by them. As to Faircloth and his family, it is only a simple debt. His indorsement had for its consideration entirely another tract of land. As to that tract, it would be a debt for the purchase-money, but as to the tract sold to Settle, it is not a debt for the purchase-money. Had Settle paid any portion of the purchase-money, the sale of the land, under section 3528 of the Code, would convey the title to the purchaser at the sheriff’s sale. But as it is, Settle having paid nothing, nothing was sold belonging to him, and the purchasers got nothing in the land under their lien against Settle. As to Faircloth, they got his title, subject to the homestead, since his obligation was only as indorser. [605] What might be the equities of the holder of this note, as against Faircloth, it is not necessary to decide. They do not come before this Court as holders of the note, but as purchasers at the sale, and they stand only on their rights as such. Had they, before the sale, tendered to the administrator the amount of the other note, perhaps equity would have compelled him to make a title to Settle, and then the land might have been sold with a clear title and for a full price, as the property of Settle, though even then the widow’s right of dower might be in the way, since the title was clearly in Faircloth at his death: Day vs. Solomon, 40 Ga. R., 32. 2. Upon the other point, we have decided, in 40 Georgia Reports, 293, that of the land be sold pending the application for homestead, the purchaser buys subject to the final judgment. The application is pendente lite, and such is also the provision of the Code, section 2018. Judgment reversed.