163 Ga. 345 | Ga. | 1926
(After stating the foregoing facts.) We are of the opinion that the court did not err in appointing a receiver. Under the evidence introduced at the trial, the court was authorized to find that the property in question, which Robert L. Adams had agreed to buy, was worth the sum of $12,500, and that the amount which he was to pay monthly was not more than the fair rental value of the property. We are of the opinion, however, that the contract created the relation of vendor and purchaser between the petitioner and Robert L. Adams. Nevertheless, where the amounts of the purchase-money to be paid monthly were no greater than the rental value of the property, and the defendant was far in arrears in the payment of this rent, and the insurance and taxes and assessments upon the property under municipal ordinances, the rights of the vendor in this case would not be protected except by the intervention of a court of equity and the application of the remedy which the court saw fit to apply under the evidence. It has been well said that “Receivers are not appointed as a matter of right, but to preserve rights.” And in such matters as these, courts of equity find directions as to caution, etc., in the Code. “The power of appoint
But what have we here ? The defendants are in possession of a house and lot worth more than $12,000. The rental value of it is, as the chancellor was authorized to find, $100 per month. The purchase-money note payable monthly for five or six years was only equal to the rental value per month, as the court was authorized to find under the evidence. The defendant was insolvent, had no property in Georgia; and if he is allowed to default in the payment of these notes, the petitioner will necessarily suffer, unless a receiver be appointed who can rent the property and collect the rent. But .the defendant insists that this would fnot entitle the petitioner to the appointment of a receiver, inasmuch as he was not less solvent than he was at the time of the purchase. The court was authorized to take a different view of this. He had allowed the installments which he was to make upon the purchase-price to accumulate without paying the same. He had not even
But the defendants further set up this defense: “Defendant Eobert L. Adams ceased making said monthly payments upon plaintiff’s failure and refusal to comply with his agreement to place a $5,000 loan on said property. Defendant stands ready and willing to carry out his part of the contract when plaintiff shows willingness to comply with his obligations thereunder.” By this part of the answer the defendant rests his right and refusal to make the monthly payments as they fell due “upon plaintiff’s failure and refusal to comply with his agreement to place a $5,000 loan on said property.” This defense is without merit. There is a clause in the contract, rather ambiguous if we merely consider the wording of it, to this effect: “Said contract being made subject to a straight loan of $5,000.00.” But when considered in connection with the balance of the contract and the evidence in the case, it is dear that these words were intended to reserve to the vendor the right to borrow $5,000 as a loan on the house and lot in question,
It will be observed that under the order to which exception is taken the plaintiff in error is allowed to retain possession ,of the premises upon payment of the amounts due and with which he is chargeable up to the day of the order, and his continuing to pay the amounts agreed to be paid monthly. We conclude, from a consideration of the facts stated above and the evidence as introduced, that the court was authorized to find that under the express terms of the contract the plaintiff was entitled to recover possession of the premises; and therefore, that the court did not err in granting the qualified order naming a receiver. In addition to the prayer for possession of the property, there is a prayer for rescission;.but there is no allegation in the petition that the plaintiff had offered to return the notes given for future payments of the purchase money; and without such an allegation the petitioner would not be entitled to rescission. And upon final trial he will not be entitled to rescission unless there is an allegation of a tender of the
Judgment affirmed.