Grace v. Means

Atkinson; J.

This is a complaint for land. Two defenses are made: one, that the deed under which the plaintiff claims was a mere security deed, based upon a usurious consideration, and therefore void; the other, that the defendant had equities, of which the plaintiff had notice at the time of his purchase, of such a character as would create superior title and defeat -recovery. Upon the first defense, no evidence was offered in its support. No further reference need be made to that. The second defense was insisted upon, and upon that the court directed the verdict. The plaintiff and defendant claimed title from a common source. This avoids the necessity of proving title into the common propositus. Which of the two has the better title from the common propositus ? The plaintiff has a deed based upon a valid consideration. The defendant has no deed, but insists that her equities are sufficient to defeat the assertion of title under the deed held by the plaintiff. It is well settled that where a vendee makes a contract for the purchase of land and -pays all the purchase-money, and nothing remains ' to be done by him in order to comply with his part of the contract, he thereby acquires whatever title the vendor had, even in the absence of a deed. Such title is the equivalent of a deed from the vendor. Pitts v. Bullard, 3 Ga. 5 ( 46 Am. D. 405 ). See, also, in this connection, Dowdell v. Neal, 10 Ga. 148 ; Skinner v. Willis, 54 Ga. 195 ; Adams v. Brooks, 35 Ga. 63 ; Temples v. Temples, 70 Ga. 483 ; Drummond v. Hardaway, 21 Ga. 438 ; McCandless v. Inland Acid Co., 115 Ga. 968 ( 42 S. E. 449 ); Peterson v. Orr, 12 Ga. 464 ( 58 Am. D. 484 ); Howell v. Ellsberry, 79 Ga. 475 ( 5 S. E. 96 ), and cases cited; Dodge v. Spiers, 85 Ga. 585 ( 11 S. E. 610 ). In the cases just cited and other cases in them cited, it has been held that, upon the strength of title acquired in that way, the vendee may sue or defend in ejectment, may sue for specific *642 performance, may assert title under a claim to property attempted to be sold under judicial process. Under the reasoning in those cases there can be no doubt that in ejectment, which is the remedy now under consideration, possession may be defended upon the strength of such title as against the assertion of title by the vendor, or one claiming under him. It is also well settled that actual possession of land is notice to the world of whatever interest the occupant has therein. Garbutt v. Mayo, 128 Ga. 269 ( 57 S. E. 495 ). From this it follows that if the interest be that of a purchaser, with only a part of the purchase-price paid, a subsequent purchaser from the same vendor would take subject to the right of the occupant to complete his contract, and thereby acquire a superior title from the common vendor. But, in order to pass title under the perfect-equity doctrine, it is prerequisite that all the purchase-money be paid, or legal tender thereof be made to the person thereto entitled. See, in this connection, Scroggins v. Hoadley, 56 Ga. 165 , and cases cited; McCurry v. Robinson, 23 Ga. 324 . The obligor would be under no obligation to convey until full payment according to the terms of the contract. It would remain executory, and no title would pass. In other words, no equity less than a jDerfect equity would be the equivalent of a deed. If, in the present case, the defendant had a perfect equity, it would be superior to the title of the plaintiff, because the defendant had first made a contract to purchase from the common propositus, and was in actual possession at the time the plaintiff received his deed; but if the equity was not a perfect equity, and therefore not the equivalent of title, the mere possession of the defendant would be obliged to yield to the superior strength of the legal title conveyed through instrumentality of the deed to the plaintiff. The evidence is clear that the defendant had not paid all the purchase-money. It is contended that some part of it was paid to W. J. Grace, the common propositus, and that the greater part was paid to R. L. Means, without any written order from W. J. Grace; and it is admitted in the plea that there is still due $18.90, which has never been paid to any one. The defendant insists that the part which was paid to R. L. Means- was paid to the person entitled thereto, but that fact was denied by the plaintiff; and the court could not adjudicate that question unless W. J. Grace and Means were parties to the suit. No decree would bind them. The defendant does not know to whom *643 to offer the $18.90. She contends that either W. J. Grace or Means or the plaintiff, T. H. Grace, is entitled to it, and avers a -willingness to pay it to whomsoever the court, upon inquiry, shall direct it to be paid. In the absence of W. J. Grace and Means, the court can not settle their rights to this balance, any more than it could have settled their rights to the other payments which it is alleged were made to Means. Under these conditions, it is manifest that the defendant’s offer was coupled with conditions which, owing to the absence of essential parties, were incapable of accomplishment, .and is therefore not the equivalent of payment or legal tender. It was not the plaintiff’s duty to make parties in order to help the defendant perfect her equities. The plaintiff had carried his burden by the introduction of his deed, and the crucial moment was at hand. Other parties being needed in order for the defendant to perfect her equities, it was incumbent upon the defendant to bring them into court. By failure so to do, the defendant lost the opportunity of establishing what it was necessary for her to do in order to obtain a perfect equity. Having failed in that respect, there was no effort made by her, independent of the ineffectual tender, to make payment of the unpaid part of the purchase-money. The result of all of this was that she did not show a perfect equity. The court overlooked the necessity of the presence of W. J. Grace and Means as parties, and erroneously directed a verdict upon the'assumption that the defendant had shown a perfect equity, and otherwise dealt with the case as if it were a proceeding in equity for the distribution of property, rather than a suit in ejectment, where the question was simply which of the contesting parties had the better title. In the case of Grizzle v. Gaddis, 75 Ga. 350 , this court said: “Where one holding a title by deed from a former owner brought ejectment against the tenant in possession of land, the latter could not, by equitable plea, claim from the plaintiff a specific performance of a parol contract alleged to have been made between the defendant and the person from whom the plaintiff bought, and of which it was averred the plaintiff had notice. Especially could not this be done without making the plaintiff’s feoffor a party.” As to the necessity of having W. J. Grace a party plaintiff, the ease of Hamilton v. Williford, 90 Ga. 210 ( 15 S. E. 753), is in point and controlling. The suit was in ejectment. The defendant filed an equitable plea setting up his parol purchase from the plaintiff’s *644 grantor and actual possession at the time of the plaintiff’s purchase, payment of part of the purchase-money, and tender of the balance. The defendant’s alleged vendor, who was the plaintiff’s grantor, was not a party to the suit. In ruling upon the sufficiency of the plea, the court said: “An equitable plea, otherwise sufficient,, would not be available without making the vendor a party, if anything remained to be done to complete the performance of the contract on the part of the first purchaser.” The ruling made in the-case of McCandless v. Inland Acid Cb., supra, is not in point. That is not a case where there remained something to be done by the party seeking to set up an equity in order to comply fully with his obligation to his vendor.

Judgment reversed.

All the Justices concur, except Holden, J.f who did preside.