No. 5657 | Ga. | Dec 15, 1926
(After stating the foregoing facts.) We are of the opinion that the court should have granted an interlocutory injunction, and have thus held the matters in controversy in statu quo until the issues made under the pleadings and evidence could be determined at a final trial. The contract under which E. H. Johnson went into possession of the land involved in this controversy is set forth in the statement of facts, certain immaterial portions being omitted. It seems to us, notwithstanding the wording of this instrument, that it should be construed as being in effect a conditional sale. It is unnecessary to set forth in this place any of the language of the instrument; it can be read in this connection as it is set forth above. Whether this instrument was a lease, or a sale upon condition that Johnson should make Fowler the payments stipulated, must be determined not merely by the reading of the language employed in framing the contract, but from a consideration of the whole instrument. Thus, though the amounts to be paid are termed “rentals,” when we consider the entire instrument it appears that they were instalments of the purchase-price agreed upon by the parties. These instalments increased yearly in amount. For the year 1924 a part of the crop grown upon the place must be paid; for the year 1925 the sum of
IJp to the time that the contract between Fowler and R. H. Johnson was made the property was Fowler’s, and title was in him. But when he executed that paper and R. H. Johnson made payments in accordance ‘ with the terms thereof, the latter became vested with an interest in the property, and he could not transfer it to his brothers except by a bona fide sale, even by the circuitous method of surrendering the contract to Fowler and having him convey to the brothers of the defendant Johnson. If Fowler thought, and had reasonable ground to think, that Johnson could not comply fully with the contract by making all the payments, and that he might sustain loss in consequence of this failure on the part of Johnson to make future payments, or have other good reasons satisfactory to himself, he would have had the right to accept the surrender of the instrument in question and agree to transfer the title to the brothers of Johnson, if that was necessary to save him from loss. But in this case a court of equity will consider the fact that the plaintiffs offered to pay the balance due under the written contract between Johnson and Fowler if the latter would deed the property to them. No fraud is charged against Fowler; nor is it charged that he is insolvent. Even though innocent of
Judgment reversed.