Scroggins vs. Hoadley.

N. G. SCROGGINS, plaintiff in error, vs. D. W. HOADLEY, defendant in error.

1. The assignee of a bond for titles to land acquires only the rights of the assignor, and takes the land subject to all the claims of the vendor for the purchase money.

2. Section 3654 of the Code, which authorizes the vendor to make, file, and record a deed to the vendee, and levy a judgment for the purchase money upon the land, when only bond for titles has been given, is very broad, and embraces a case where the plaintiff in the judgment is the transferree of the notes for the purchase money, and the vendor has indorsed them to him. In such case the vendor may make a deed to the vendee, and the land be sold to satisfy the judgment of the transferree of the note; nor does it make any difference that the bond for titles has been assigned and the deed made to the assignee by the vendee, if such assignee took with knowledge that the purchase money had not been paid.

3. Even if the bond for titles obligated the vendor to make a deed to the land so soon as certain payments were made, and certain notes given, and the proof was that these conditions had been complied with, still section 3654 covers the case, and the land, in view of the facts of this case, may be sold under the judgment on the notes for the balance of the purchase money.

Bond for titles. Levy and sale. Before Judge BUCHANAN. Coweta Superior Court. September Term, 1875.

Reported in the opinion.

P. F. SMITH, for plaintiff in error.

M. J. CLARK; LAVENDER RAY, for defendant.

JACKSON, Judge.

Hoadley sued F. M. Scroggins and obtained judgment against him for $1,000 00, with interest; execution was issued thereon and levied upon certain real estate. It was claimed by N. G. Scroggins, and the question was whether the land levied on was subject to the fi. fa., or was the property of the claimant. The facts, in substance, were as follows: F. M. Scroggins bought from W. B. W. Dent the estate in question on the following contract: "Received of F. M. Scroggins $100 00, in part payment for a store-house on Greenville

Scroggins vs. Hoadley.

street. If the said Scroggins pays $1,400 00 between this and Christmas, and gives his notes each for $500 00, due three and six months hence, then the said Dent will make him good and lawful titles to the same;" signed by W. B. W. Dent, and dated December 7th, 1869.

The money was paid, and the two notes were given. These notes were transferred to Hoadley, on which he obtained judgment and levied upon the store-house. Hoadley paid Dent the value of these notes, and Dent indorsed them. F. M. Scroggins, after he had paid the $1,400 00 and given the two notes, assigned this bond for titles or receipt to N. G. Scroggins, the claimant, and made him a deed to the store. W. B. W. Dent, by the request of Hoadley, the plaintiff, under section 3654 of the Code, made a deed to F. M. Scroggins, and Hoadley then levied upon the store.

On this state of facts the court charged the jury that "if plaintiff's execution was for the purchase money of the property levied on, and if that purchase money was due and unpaid at the time defendant transferred the bond and made a deed to claimant; and if no deed had been made to defendant at the time by W. B. W. Dent, and judgment was obtained afterwards against defendant for the purchase money; and if a deed was made, filed and recorded in the clerk's office of the superior court of Coweta county from W. B. W. Dent to defendant, you should find the property levied on subject to the fi. fa."

The jury found the property subject; and the claimant moved for a new trial on the ground that the court erred in the foregoing charge, and because the verdict was contrary to the law and the evidence. The court overruled this motion, and this is the error assigned.

1. N. G. Scroggins is the assignee of F. M. Scroggins to this bond for titles. He holds the title of F. M. Scroggins. F. M. Scroggins assigned to him all his title but nomore. His rights and liabilities are those of his assignor, no more, no less: Hind vs. Low, 38 Georgia Reports, 191; Rawson vs. Coffin, 55 Ibid., 348.

Scroggins vs. Headley.

2, 3. It follows that this store in the hands of the claimant, is liable for the purchase money, if it would have been liable while in the hands of F. M. Scroggins; nor does it make any difference that F. M. Scroggins made a deed to N. G. Scroggins. The latter is no bona fide purchaser without notice, but knew all about the title of his vendor, and merely stepped into his shoes. He knew that all the purchase money had not been paid by his vendor; he knew, therefore, that his vendor had no complete equity: 3 Georgia Reports, 5; 10 Ibid., 190; 12 Ibid., 464; 40 Ibid., 32; 47 Ibid., 214; 51 Ibid., 502—therefore, he acquired no perfect equity himself. Nor does it make any difference that the bond for titles obligated the vendor to make titles when these notes were given, inasmuch as these notes were for the purchase money. The statute, Code, section 3654, is very broad, and enacts that "when any judgment has been rendered in any of the courts of this state, upon any note or other evidence of debt, given for the purchase money of land, where titles have not been made, but bond for titles given, it shall and may be lawful for the obligor of said bond to make, and file, and have recorded in the clerk's office of the superior court of the county wherein the land lies, a good and sufficient deed of conveyance to the defendant for said land; whereupon, said land may be levied on and sold under such judgment as in other cases." Nor does it make any difference, in our judgment, that the vendor of the land had transferred the notes to the present plaintiff; especially, as it appears from the record, that he had indorsed them, and was liable for their payment. The statute, (Code, section 3654,) by its terms, includes "any judgment" upon "any note" given for "the purchase money of land," where bond for titles only is given, and covers this case without stretching it beyond the words used. We think that this land is subject to this debt righteously and equitable as well as legally, and therefore affirm the judgment of the court below.

Judgment affirmed.

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Schnell et al. vs. Toomer et al.

JOHN C. SCHNELL, trustee, et al., plaintiffs in error, vs. FREDERICK A. TOOMER, administrator, et al., defendants in error.

1. An ante-nuptial contract between husband and wife and a trustee, made in 1838, with the declared object of securing the wife's property to her sole and separate use, so that the same should not be liable to the debts or contracts of the husband, and conveying said property to the trustee, in trust for the sole and separate use of the wife for life, and after her death, for the use of her issue, their heirs and assigns, forever, share and share alike; the wife, nevertheless, to have the power of selling and conveying the same absolutely in fee simple, and of passing title thereto by her own deed or bill of sale; and should she die, leaving no issue of her body living at the time of her death, and leaving no will disposing of the property, then, the trustee to hold in further trust for certain designated persons, and their heirs forever, share and share alike; and if the wife should die leaving no issue of her body living at the time of her death, then the property to be held by the trustee in further trust to and for such uses as she might, by last will, direct and appoint, vested the legal title in the trustee, and the same remained in him during the whole period of the coverture, notwithstanding the wife's power to sell and convey the property, she not having exercised the power.

2. Against ejectment brought in 1860 for a tract of land embraced in the trust, the wife suing by her trustee, the statute of limitations would be a defense, and the wife's coverture would be no reply to the statute, inasmuch as the trustee held the title and was competent to sue. If he was barred, she, his cestui que trust, was barred, and all for whom, as trustee, he held in remainder.

3. The exclusion of reasonable doubt, in some civil cases, as held requisite in 11 Georgia Reports, 160, and 30 Ibid., 619, means no more than that the jury must be clearly satisfied.

4 Where it does not appear that the party holds back evidence within his power to produce, the non-production of more full and definite evidence than he presents, raises no presumption against him; and there should be no charge given to the jury on the subject of such a presumption.

Husband and wife. Trusts. Statute of limitations. Evidence. Presumption. Charge of court. Before Judge HALL. Dougherty Superior Court. October Term, 1875.

Report unnecessary.

VASON & DAVIS; R. N. ELY, for plaintiffs in error.

L. P. D. WARREN, for defendants.

Schnell et al. vs. Toomer et al.

BLECKLEY, Judge.

1. This action was commenced in 1860. The statute of limitations being pleaded, the plaintiff sought to parry it by coverture of Mrs. Amos; and it was insisted that her antenuptial contract with her husband and her trustee, did not vest the legal title in the latter, so as to subject it to be acted upon by the statute during the time she was covert. The conveyance is a very singular and unusual one. Its terms are sufficiently indicated in the head-note. It will be seen that the trustee was interposed for several purposes; first, to hold off the marital rights of the husband; secondly, to give effect to remainders in favor of her issue, or in favor of other persons in case Mrs. Amos should die intestate and without issue; and thirdly, to execute such uses as she might, by will, direct and appoint. The anomalous feature of the instrument is, that while it declares a trust for her use during her life only, it gives her an absolute power of disposition by sale, and enables her to pass title by her own deed or bill of sale. This power is what is relied upon to clothe her with the legal title, and it seems to be supposed by plaintiffs' counsel that the title passed into the trustee sufficiently to keep the husband's marital rights from attaching, and then returned into Mrs. Amos free from those rights, and upon her death re-vested in the trustee in behalf of the remaindermen. This is a complex theory, and seems to us to be too curly; too much twisted to be good law. The better view of the case is, that the power in Mrs. Amos to sell and convey title should be construed as a simple power to change the investment, the specifics and the form of the trust estate, the proceeds being subject to the like trusts, or else that the mere existence of the power, however deep it might go, would not destroy or suspend the trust, and that nothing short of its actual exercise would have that effect. As there is an express limitation of Mrs. Amos' equitable estate to the period of her natural life, with contingent remainders over, this case differs materially from that of Cook vs. Walker, 15 Georgia Reports, 457.

VOL. LVI. 12.