Ross v. Glover-Ball Co.

Hines, J.

(After stating the foregoing facts.) Can the obligees in a bond for title, after they have sold and by their deed conveyed to a third person the premises which the obligor agrees to convey to them upon the payment of the purchase-money, and in which deed they assign said bond for title to such person, when sued for the last installment of the purchase-money, in their answer pray for, and have, a decree requiring the obligor to convey to the vendee and transferee of their immediate vendee of such premises and to their assignee of said bond said premises, upon their payment, or offer to pay, the purchase-money in full? In other words, can the obligees in said bond for title, when sued for the balance due on the purchase-price, seek, in their answer, specific performance of the contract of purchase, in behalf of one who claims under their immediate vendee of such premises and their assignee of said bond for title, especially when such subvendee or subassignee is not a party, to the suit? We think not. The general rule 'is that an action oh a contract must be brought in the name of the party in whom the legal interest in such contract is vested. Civil Code (1910), § 5516; Cochran v. Strong, 44 Ga. 636 ; Dalton City Co. v. Johnson, 57 Ga. 398 ; Foster v. McGuire, 96 Ga. 447 ( 23 S. E. 398 ). By their written assignment of this bond for title, the obligees therein had no longer any legal interest in the contract of purchase which would enable them to sue, the obligor for its specific performance. Such right vested in the final assignee of the bond, who alone could sue the obligor for specific performance of her contract of sale. Robinson v. *115 Perry, 21 Ga. 183 ( 68 Am. D. 455 ); Fulcher v. Daniel, 80 Ga. 74 ( 4 S. E. 259 ); Perry v. Paschal, 103 Ga. 134 ( 29 S. E. 703 ); Cowart v. Singletary, 140 Ga. 435 ( 79 S. E. 196 , 47 L. R. A. (N. S.) 621, Ann. Cas. 1915A, 1116); Sullivan v. Curling, 149 Ga. 96 ( 99 S. E. 533 , 5 A. L. R. 124). After the obligees had assigned the bond for title to another, they could not seek specific performance for the use and benefit of another claiming under their assignee. To maintain a suit for the use of another, there must be a legal right of action in the party bringing it. Terrell v. Stevenson, 97 Ga. 570 ( 25 S. E. 352 ); Mitchell v. Georgia & Alabama Ry., 111 Ga. 760 ( 36 S. E. 971 , 51 L. R. A. 622); Norwich Union Fire Insurance Society v. Wellhouse, 113 Ga. 970 ( 39 S. E. 397 ) ; Wright v. Continental Ins. Co., 117 Ga. 499 ( 43 S. E. 700 ); State v. Bank of Quitman, 117 Ga. 849 ( 45 S. E. 236 ). An action for specific performance of a contract of sale of land will lie at the instance of the obligee in a bond for title, suing in behalf of a third person to whom he has sold all his interest in the premises or in the contract, such assignee being a coparty plaintiff as usee, where no assignment in writing of such bond has been made. Simms v. Lide, 94 Ga. 553 ( 21 S. E. 220 ). The answer of the defendants did not allege that the transfer and assignment of this bond for title by them to their assignee was in writing, which allegation was essential to enable such assignee, or one claiming as a subassignee, to bring a suit in his name for its specific performance. Hartford Fire Ins. Co. v. Amos, 98 Ga. 533 ( 25 S. E. 575 ); Foster v. Sutlive, 110 Ga. 297 ( 34 S. E. 1037 ). For lack of this specific allegation the court did not err in sustaining the demurrer of the plaintiff to the portions of the answer of the defendants which sought specific performance of this contract.

But on the trial proof of the assignment of the bond for title in writing was made, and such proof negatived the right of the defendants to specific performance of this contract either for themselves or for the use of the subassignee. For this reason the court erred in rendering a decree for its specific performance in behalf of such assignee. This renders it unnecessary to determine the question whether the evidence was sufficient to authorize a .decree for specific performance. We affirm so much of the judgment of the court as finds for the plaintiff upon the note sued upon; but we reverse the final decree requiring the plaintiff to convey *116 these premises to the executors of J. A. Glover, and in default thereof that title be decreed in them.

Judgment affirmed in part and reversed in part.

All the Justices concur.