Heyward v. Finney

Bleckley, Justice. The facts of this case bring it clearly within the principle of Upchurch vs. Lewis, 53 Ga., 621; and Neal vs. Murphy, 60 Ib., 388, has no application. There is entire harmony between these two adjudications, as any one can see who looks with attention enough to understand them. The vendor of realty who has given his bond to make titles, receiving a part of the purchase money, cannot sell the premises at judicial sale for the balance, nor even levy upon them therefor, without first executing a deed, filing it and having it recorded. Nor can he by transferring the judgment and execution enable another to do under it what he cannot himself do. While judgments and executions are negotiable by indorsement (Code, §2776,) they are not, in the strict commercial sense, negotiable paper, for the transferee acquires no rights beyond those of the original plaintiff. Code, §3597. It follows with rigorous logic, that what the plaintiff could not sell, his transferree cannot sell; and Upchu/rch vs. lewis rules accordingly. On the other hand, when the same vendor of realty holds a negotiable note for the balance of purchase money and transfers it for value without indorsement, (in which case, of course, it is payable to bearer by its terms), and the holder sues upon it and obtains judgment, he may sell the property just as any other judgment creditor might sell it, irrespective of whether the vendor has conveyed by deed or not. The note being negotiable paper in the strict sense, and being a promise to [355] pay to the bearer, any bearer who has invested his money in it has a right to take the maker at his word and force him to pay it to him out of any property which is subject to the maker’s ordinary debts. The maker knows that a mere bearer of the note cannot invest him with full title to the land, and with this knowledge he, by the note, nevertheless promises to pay Mm. That he may be constrained to do it by a sale of the land, though the vendor has made no deed, is the ruling in Neal vs. Murphy. No doubt the chancellor saw the palpable distinction between the two cases, for he very properly granted the injunction. Other cases cited by counsel, 56 Ga., 165 : 22 lb., 116 ; 48 lb., 397 ; 47 lb., 214 ; 55 lb., 348 ; 53 lb., 52. Judgment affirmed.