Johnson v. Graves

Stephenson, J. In October, 1860, Graves sold to Bell certain lands in Ashley county, for $2000, and took his promissory notes therefor. Graves made Bell a deed to the land and put him in possession, and now files his bill to enforce his vendor’s lien. Graves alleges in his bill that James TI. Johnson is in possession of the land under a trust deed from Bell, in favor of his (Bell’s) creditors, to secure certain debts due them prior to his sale of the land to Bell. Johnson, answering for himself and Bell, admits all the allegations of t'he bill, but avers that he is an innocent,purchaser, -without notice of Graves’ lien; also, thjit the beneficiaries of the deed of «trust had no notice whatever that the purchase money remained unpaid. Johnson makes his answer a demurrer to the bill. • The cause was heard on the bill and answer, and decree for plaintiff, Graves. As the record shows no judgment of the court on the demurrer, we will treat it as having been overruled, and we think properly so. - The pleadings, viewed as evidence, show that Johnson and the beneficiaries, under .his deed of trust, stand in court as bona fide purchasers without notice of the vendor’s lien. It needs no citation of authorities to prove that the settled rule of this court is, that a bona ficle purchaser, for a valuable consideration, without notice of the vendor’s lien, takes the.lands discharged of it; but does Johnson dccupy this position? Appellee, Graves, alleges in his bill that “ all the debts secured in said deed of trust were contracted prior to said deed of trust, and also prior to the conveyance from plaintiff to defendant, Bell,” and as this is not denied in the answer, it is taken for true. Under this state of facts, Jolmsdn and the creditors of Bell, for whose use the trust was executed, occupy very different ground from one who pays his money in good faith upon the vendor’s title, ignorant of his secret equitable lien for the purchase money. The object of the law, in all questions arising between vendor and vendee respecting the equitable lien of the former, is to give the vendor the benefit of his lien as against the vendee and those holding under him having notice of the lien, but to save him harmless' whose money has been advanced in good faith without this notice, and upon the vendor’s declaration in his deed. Let us apply this principle to the case at the bar. The. vendee, Bell, executes to Johnson Iris deed of trust,, to secure certain of his creditors, -which debts he had contracted prior to his purchase of the land from Graves. This deed, at most, gives but an equitable title to Bell’s’ creditors, and which they must proceed 'to execute before they can gain the legal title. They have, by taking this security, in no wise impaired Bell’s liability to them, but would have all the remedy, after taking this security, they had before. Nor are they in worse condition by giving the vendor, Graves, priority over them than they were when they gave Bell the credit. If they had taken the land in satisfaction of the debt, or had made advances upon the faith of the title, as it appeared of record, they would have occupied a different attitude in the case; but where creditors oí the vendee take a conveyance from him merely as a security for their antecedent debts, without advancing any new consideration, they are postponed to the rights of the vendor. 2 Wash. Real Prop., 3d ed., 89; Brown vs. Vanlier, 7 Humphrey, 249; Harris vs. Hornor, 1 Dev. & Bat., 455; Eubanks vs. Poston, 5 Monroe, 286; McGown vs. Yerks, 6 Johnson’s Ch. R., 450; Chance vs. McWhorter, 26 Ga., 315; Repp vs. Repp, 12 Gill & J., 341; Dickinson vs. Tillinghest, 4 Paige, 215, Finding no error in the proceedings of the court below, the decree is in all things affirmed.