Skinner v. Willis

McCay, Judge. 1. We assume that the declaration in this case contained the averments necessary to authorize the introduction of the evidence on which this case went to the jury. Under our action for land provided for by section 3389 of the Code, the precise nature of the plaintiff’s claim may be set forth in his abstract of title. So in the action of ejectment the demises may be so laid as to set out precisely the' nature of the plaintiff’s claim to the land. As the writ does not form a part of the record, we, as is the rule in such cases, will presume it was sufficient to authorize the evidence, or the evidence would have been objected to for that reason. At last, therefore, the question is whether, under our law, an equitable title can sustain an action of ejectment. We see no difficulty in this if proper parties be before the court In Bullard vs. Pitts, 3 Georgia, 5, this court held that in this state a perfect equity was a legal right, and it has more than once since then been held that a bond for titles, with the purchase money paid, was a good legal title. In the case at bar, if the facts be as claimed for the plaintiff, his right is a complete one, except as to the mere form of a written conveyance of the land. We have, 1st, the levy and statement of the sale on the execution; 2d, the sheriff’s docket, (kept as provided by the act of 1810: Cobb’s Digest, 557,) stating the sale, that Doctor Willis was the purchaser, the price paid, and the disposition of the money. This makes out a perfect case in the purchaser to demand a title. Was there anything more than this in Bullard vs. Pitts? Indeed, there was less, for the payment of the purchase money was proven by parol. Here it is in writing by an official record. It seems to us that if section 3082 of the Code, authorizing a suitor to choose his forum, either at law or equity, at his own discretion, is to mean anything, and we think it means a great deal, that it covers a case like this — a perfect equity — a complete right with nothing to be done but to make a formal conveyance. 2. But whilst we think the plaintiff has made out a góod [196] right at law against the defendant in execution, yet we do not think he has made a good case against the purchasers, or at least we do not think the charge of the court was justified as to the purchasers from the defendant. The court assumed that they had notice, that if the plaintiff liad the right to recover against the defendant in ji. fa., he had the right to recover generally. Perhaps the evidence might have justified the jury in finding the present claimant of the land had notice, but we think the charge was error, because it did not leave that question to the jury. We are clear that a purchaser would not be charged with notice of these entries, nor that he would be bound to trace up the history of the mortgage, its foreclosure, levy and sale. The sheriff’s docket is not kept for such a purpose. We have no fault to find with the verdict. Under the evidence the jury might well have treated the evidence of Camp as overcome entirely by the other evidence of his recognition of the right of the plaintiff. But it may be that these purchasers are innocent; at any rate, the court had no right to presume they were not. He should have left that to the jury. Judgment reversed.