Brown v. Farmer

Lumpkin, Justice. 1. The vendor of land who retains the title, giving to the purchaser a bond for titles and taking his promissory notes for the purchase money, maturing at different times in the future, is entitled to enforce against the land itself the collection of the purchase money notes, irrespective of the solvency or insolvency of the maker. Hawkins v. Dearing et al., 93 Ga. 108, 19 S. E. Rep. 717. "Where one only of the notes has matured and been reduced to judgment, the vendor could file in the .clerk’s office a deed conveying the land to the vendee, and then proceed to sell the land under the judgment. Out of the proceeds of the sale, the judgment would first be satisfied; and as to the surplus, the claim of the vendor for the balance of his unpaid purchase money would undoubtedly be superior to the claims of all other creditors of the vendee. Code, §§3586, 3654. As to any of the remaining purchase money notes which had not matured at the time of the sale, the remedy of the vendor by such sale would not be entirely adequate for his protection. Consequently, he would need the aid of a court of competent jurisdiction, in order to have the surplus impounded and applied to the satisfaction of such of the remaining notes as had already matured, and to the others as they became due. A vendor in the position indicated has no right to collect his money upon any of the notes before their maturity; but he may maintain an equitable action in the superior court for the purpose of obtaining a decree for the sale of the land and for holding up the surplus proceeds above the [182] amount necessary to discharge the matured notes, in order that the same maybe applied to the others as they mature. We see no reason why the amount of the judgment already rendered may not be embraced in the decree rendered in the plaintiff’s favor; but when he thus elects to resort to equity in order to secure full protection in all his rights, the proceeding by which he obtained the judgment on the single note ought to be treated as superfluous, and for that reason the plaintiff should be charged with the costs of that proceeding. This will simply require him to do full equity, a duty incumbent upon every one seeking equitable relief. 2. When a party files an equitable petition of the kind indicated in the preceding note; and the defendant, at the appearance term, files no plea nor answer, but at the trial term meets the plaintiff’s petition with a general demurrer which is without merit, the court, in passing upon the demurrer, may render a final decree in the plaintiff’s favor. The demurrer being overruled, and the defendant presenting no other defence to the action, the facts charged in the equitable petition may be taken as confessed, the general demurrer having admitted these facts as alleged, and the defendant presenting no denial in any form as to the truth of them. When, under such circumstances, the court has announced that a decree will be rendered in the plaintiff’s favor, stating its terms, and the judge is about to sign the decree, no cause for declining to do so arises from the fact that the defendant then offers to plead, and does plead, that he is not insolvent and that the whole debt is not due. As already seen, the question of his solvency is immaterial; and the fact that some of the notes have not yet become due being apparent upon the face of the petition, and constituting the very ground on which the equitable remedy was based, this, certainly, would present no reason for not signing the decree. [183] The court, in this case, rendered an absolute decree in favor of the plaintiff for the full amount of the balance due him upon the purchase money notes, with interest, without regard to the fact that some of the notes were not due. We think that in moulding the decree it should have been provided that if, at any time before a sale of the land, the defendant would pay off the amount of the debt then due, together with all costs chargeable to him up to that time, the sale might be postponed; and inasmuch as the defendant, after a sale, would be deprived of the use of the land, and at the same time interest would be accruing on the unpaid notes, all of which bear interest from their date, the decree ought further to have provided that, in case the defendant should consent to the immediate application of the proceeds of the sale to the payment of the principal and interest then accrued upon the plaintiff’s debt, whether all of the same had matured or not, this might be done, and thus stop the further accrual of interest upon the plaintiff’s debt, if thus paid in full; and if not paid in full, then upon so much of it as would be satisfied out of the proceeds of the sale. Accordingly, in the judgment we have rendered in this case, we have given appropriate direction for the modification of the •decree which the court rendered. Judgment affirmed, with direction. ■