Davis & Brandon v. Elliott

Hill, J. (After stating the foregoing facts.) Upon the overruling of the demurrer to the petition as amended, which judgment was not excepted to in time, the petition stood as setting out a cause of action, the court holding, in effect, that the petitioner alleged a good title to the land. She alleged that Alfred D. Harden sold, transferred, and assigned to Mrs. Meta H. Elliott, the plaintiff in this ease, the indebtedness secured by the security deed, but that Alfred D. Harden did not convey to Mrs. Elliott the legal title to the land; that the widow and children of Alfred D. Harden, he being dead, who inherited the legal title to the land in controversy, hold the title to the land for the special purpose only of securing the indebtedness of William L. Gignilliat and John A. Heyward to Mrs. Meta H. Elliott. She proved her case as laid, and was entitled to recover. Brooks v. Rawlings, 138 Ga. 310 (75 S. E. 157). She also connected herself up with the legal title by showing that the persons holding the legal title held it for the benefit of the transferee, and she therefore had an equity in the property. In the case of Clark v. Havard, 122 Ga. 273 (50 S. E. 108), Mr. Justice Cobb said: “The grantee in a security deed may sue the debt to judgment and cause the land to be levied upon and sold after a reconveyance to the debtor, or he may bring an action to recover possession of the land upon the title derived from the security deed. He may pursue these remedies concurrently, and neither is an obstacle in the way of the other until the debt has been fully satisfied under the operation of one or the other proceeding. Ray v. Pitman, 119 Ga. 678, 681 [46 S. E. 849], and cit. A transfer of the debt by the grantee does not, in the absence of a conveyance, pass to the transferee title to the land. Sheppard v. Reese, 114 Ga. 411 (2) [40 S. E. 282], But as a result of such transfer the transferee acquires an equitable interest in the security effectuated by the deed. Van Pelt v. Hurt, 97 Ga. 660 (2) [25 S. E. 489], After the debt has been transferred the grantee in the security deed holds the title for the benefit of the transferee. Shumate v. McLendon, 120 Ga. 397 (10) [48 S. E. 10], The transferee may proceed to collect the debt by [174] obtaining judgment and causing a levy to be made on the land after a reconveyance by the grantee; or he may in equity accomplish the same result by a proceeding against the debtor and the grantee, and in such a proceeding he may obtain a decree providing for a sale of the land and the payment of the debt, or for a recovery of the possession of the land, to be held for the same purpose and to the same extent as the grantee could have recovered it if he had not transferred the debt. At law the transferee is the owner of the debt, but not the owner of the land. In equity he is the owner both of the land and the debt. If a court of equity has taken jurisdiction at the instance of the transferee, for the purpose of allowing him to assert his equitable title to the land, he may make such parties and ask such decree as may be necessary and proper to make the assertion of his equitable right complete. Hence, if there are third persons asserting title which can not be legally or equitably asserted as against the transferee, and such parties are colluding for the purpose of delaying and hindering him in the pursuit of the remedies which equity will afford him to obtain satisfaction of his debt, a petition making these persons parties and setting forth sufficient facts to enable the court to render a decree which would make effective the assertion of the plaintiff’s right to the land would not be multifarious. Conley v. Buck, 100 Ga. 187 [28 S. E. 97]; Ernest v. Merritt, 107 Ga. 61 [32 S. E. 898]. Applying these principles to the case under consideration, it is clear that the plaintiff did not have legal title to the land, but did, by the transfer of the debt, obtain an equitable interest in the security, and therefore such an equitable title to the land as was necessary to enable her to assert her equitable interest in the land.” See Powell on Actions for Land, 528. Another question is, is the sheriff’s levy of the tax execution upon the land in controversy excessive and void, and the sale thereunder a nullity? The jury rendered a verdict that the levy was excessive, and found for the plaintiff the sum of $400 damages; the amount of the damages being subsequently written off by the defendant in error; and ground 8 of the motion for new trial is therefore expressly abandoned. Was the jury authorized to find that the levy was excessive? William L. Gignilliat testified as follows: “Woodville is a desirable property for residential purposes, on account of its location, being on a salt-water creek. It [175] was my old home place, and has an avenue leading to the public road, and is accessible to the county site. The residence was burned a number of years ago; it was destroyed by fire several years before the sheriff’s sale of the property for taxes. The property sold by the sheriff for taxes was capable of division into several tracts, any one of which would have brought the amount due by me for taxes, which was approximately $200. The entire tract was sold and brought $500 at the tax sale. I got the difference of approximately $300, being the overplus that the sheriff had after the payment of the taxes due by me, and what the property brought at the sale. The levy upon 100 acres for a tax of about $200 was excessive. I have had considerable experience in dealing in land in McIntosh and neighboring counties. In 1916 land of the character of the land now in dispute, with frontage on salt water, was worth $25 an acre; in 1919 it was worth about the same; to-day I consider its value about the same, $25 an acre. The difference in the value of the land, due to cutting timber, etc., is $500 to $1000, and the spring on the place, which supplied it with water, has been choked up. I was in possession of the land in dispute at the time the deed to secure debt to Judge Harden was made, and have been in continuous possession ever since, including the 'time of levy and sale under the tax fi. fa. I knew the family of Judge Harden. He had only two children, one son named Alfred, and one daughter named Meta. The land in dispute, now called ‘Woodville,’ was originally two separate tracts, one the summer house of my grandfather, the other of my great-uncle. These separate tracts had separate residences and other buildings on them.” There being evidence to the effect that the sheriff’s levy on the land in controversy, to satisfy the tax execution, was excessive, we are of the opinion that the verdict on that question was authorized. Under the Civil Code (1910), § 6032, it is provided that “Courts have full power over their officers making execution sales; whenever satisfied that a sale made under process is infected with fraud, irregularity, or error to the injury of either party, the sale will be set aside.” The evidence in the instant case shows that the tax fi. fa. and cost amounted to approximately $200, and that the value of the land levied upon was variously estimated at from $1000 to $2500. It was also in evidence that the tract of land was capable of subdivision into separate tracts, each of which would be of sufJ [176] ficient value to satisfy the execution. In these circumstances the jury was authorized to find that the levy upon the entire tract was excessive, and the sale void. Stark v. Cumming, 127 Ga. 107 (2) (56 S. E. 130), and cit. The sheriff’s deed being void, the plaintiff having the right as a party at interest under the security deed to sue in ejectment, there being evidence to support the verdict, and the trial judge being satisfied therewith, this court can not for any reason assigned reverse his judgment refusing a new trial. Other headnotes do not require elaboration. Judgment affirmed. All the Justices concur, except Russell, G. J., and Atkinson, J., who dissent.