174 Ga. 1 | Ga. | 1931
On March 18, 1927, William T. Davis filed against Brittain Brothers Company his petition in which he made these allegations: On March 23, 1926, petitioner purchased from defendant a described tract of land for the sum of $2,000. He paid $1,000 of the purchase-price, and executed his note for the balance. The defendant executed its bond for title, in which it agreed to make to him, on March 23, 1927, a good and sufficient title in fee simple to said land upon the payment of said note. The defendant was represented in this transaction by its treasurer, A. A. Chapman, who represented to petitioner that the defendant had a good and merchantable title to said land. Petitioner relied upon said representation as being true, and, acting thereon, bought said land from the defendant, believing that he was buying land to which the defendant had a good and merchantable title. He did not know that this representation was not true. About two weeks ago petitioner discovered that the defendant had title to only four sevenths undivided interest in said land. If he had known that defendant had only such interest instead of an absolute and perfect title to all of the land, he would not have bought it and would not have paid defendant $1,000 on the purchase-price. It will be impossible for the defendant to execute to him, on March 23, 1927, a good and valid title to said land in fee simple, for the reason aforesaid. Petitioner is entitled to and hereby elects to rescind said contract. The defendant is entitled to have deducted from the amount paid a fair and reasonable rental of its four sevenths interest in the land. Petitioner prays that the contract of sale be canceled, and that he have judgment for the $1,000 paid on the purchase-price of this land. The defendant, on June 10, 1927, filed its answer in which it denied the material allegations of the petition.
The defendant demurred to the petition, upon the ground that it set forth no cause of action. The judge overruled this demurrer. This court affirmed that judgment. Brittain Bros. Co. v. Davis, 167 Ga. 159 (144 S. E. 904).
On January 29, 1929, the plaintiff again amended and made these allegations: At the time he bought said land from the de
On January 29, 1929, the defendant amended its answer and prayed for judgment against the plaintiff upon his note for $1,000, with interest thereon from March 23, 1926. On the trial the judge directed a verdict in favor of the defendant. That judgment was reversed. Davis v. Brittain Bros. Co., 168 Ga. 718 (148 S. E. 917).
On October 11, 1929, the defendant, by amendment of its answer, made these allegations: It has good and complete title to the land involved and is prepared to convey title thereto to the plaintiff. On or about September, 1909, J. W. and J. C. Davis purchased this property from Cheney. J. W. Davis invested no money therein. Having no money to invest in said property, J. W. Davis sold the same to J. C. Davis, making a verbal contract with the latter that he was to pay the entire purchase-price of said property. He placed J. C. Davis in possession of said land at the time, J. C. Davis agreeing to pay the entire purchase-price of said land represented by a mortgage of $2,200 to A. A. Chapman. J. C. Davis had previously paid all of the cash upon said property that had been paid to Cheney on the purchase-price. In pursuance of said agreement J. C. Davis entered into possession of said property, and made valuable improvements thereon, which are described in this amendment. J. C. Davis remained in the open, absolute, peaceable, and continuous possession of said land under the sale from J. W. Davis, paid the full purchase-price thereof, and by reason of said agree
Pearl, Mattie, Mamie, and Connie Davis filed an answer. They denied that the defendant had ‘acquired the title to the half undivided interest of their deceased father in this land. They set up that each of them owned an-undivided twelfth interest in said land, and prayed for decree accordingly. On the trial the judge directed the jury to find a special verdict in answer to the following questions: (1) Did J. C. Davis have an agreement with his father, J. W. Davis, that rrpon payment of the debts on this land, he could have the land? (2) Did J. C. Davis pay for the land? (3) Did J. C. Davis go into sole possession of the land under this agreement? (4) Did A. A. Chapman fraudulently represent to William T. Davis, before making the bond for title, that Brittain Brothers Company had a good title to the land? (5) Did William T. Davis promptly restore possession of the property to Brittain Brothers Company upon discovering the defective title, that is, if there was a defective title? (6) What was the rental value of the land during each year that William T. Davis held possession ? (7) How many years did William T. Davis have possession?
The jury answered the first three questions in the negative. They answered questions 4 and 5 in the affirmative. In answer to the sixth question they found that the yearly rental value of the land
The defendant in writing duly requested the court to charge the jury as follows: “I charge you that where a verbal contract for the purchase of land is made, and under such contract the purchaser enters into possession of said land and makes valuable improvements thereon, and fully performs the terms and obligations of the contract, and pays the full price therefor, such contract is binding upon the parties thereto and their heirs at law, and that the purchaser has in said property what is known, under the law as a perfect equity in said property, which is the equivalent of a fee-simple title in the property; and that upon proper proceedings, to which proper parties are made, the purchaser under these is entitled to a decree of the court decreeing the fee-simple title to the property to be in him as against the other parties to the contract, or the heirs at law of such parties.” The court refused to give in charge the principle embraced in this request, and to this ruling the defendant excepts in the first special ground of the motion for new trial. This request embodied a correct and applicable principle of law under the pleadings and evidence in this case. A parol contract for land, of which specific performance is sought, should be made out so clearly, strongly, and satisfactorily as to leave no reasonable doubt as to the agreement. Beall v. Clark, 71 Ga. 818; Pair v. Pair, 147 Ga. 754 (95 S. E. 295); Gordon v. Spellman, 148 Ga. 394 (96 S. E. 1006); Allen v. Allen, 151 Ga. 278 (106 S. E. 81); Farr v. West, 152 Ga. 595 (110 S. E. 724); Ezell v. Mobley, 160 Ga. 872 (129 S. E. 532); Hattaway v. Dickens, 163 Ga. 755 (137 S. E. 57).
It follows that the judge erred in refusing to give the instruction embraced in the request, unless it was covered by the general charge. But it is insisted by counsel for the plaintiff that this instruction was' so covered by an instruction in the general charge, as follows: “In determining whether or not any such verbal agreement was made between J. W. Davis and J. C. Davis, I charge you that you should consider all the facts and circumstances appearing from the evidence, and that the burden is on the defendant, Brittain'Broth'ers
In the second special ground of its motion for new trial this defendant excepts to the charge last quoted, upon the grounds that (a) it put on this defendant the burden of proving the fact of payment of the purchase-money so strongly, clearly, and satisfactorily as to leave no reasonable doubt; (b) this rule does not apply to the payments under a parol contract for the purchase of land; and (c) it could not be understood by the jury, because the court in his general charge had instructed the jury that “The burden is upon the plaintiff to establish each and every material allegation in his petition by a preponderance of the evidence, except as I will hereinafter note, in reference to the question which you will have
Movant in the third special ground of its motion for new trial contends that the answer to question two was without any evidence to support it. When the case was here before, this same contention was urged as a reason why the trial judge properly directed a verdict for the defendant. This court then held that the court erred in directing that verdict. This settled this contention against the movant. On the last trial the evidence on this point was substantially the same as it was on the first trial. It follows that this contention is not now well founded, and that a new trial should not be granted for this reason.
The court charged the jury as follows: “I charge you, gentlemen, as to question four — as to what is meant by fraudulent representations, or fraud, I give you in charge the following, under section 4622 of the Civil Code: Fraud may be actual or constructive. Actual fraud consists in any kind of artifice by which another is deceived. Constructive fraud consists in any act of omission or commission, contrary to legal or equitable duty, trust, or confidence justly reposed, which is contrary to good conscience and operates to the injury of another. The former implies moral 'guilt; the latter may be consistent with innocence. I charge you that under section 4624 of the Code suppression of a fact material to be known, and which the party is under an obligation to communicate, constitutes fraud. The obligation to communicate may arise from the particular circumstances of the case. I charge you
In dealing with question five the court charged the jury as follows : “I charge you that if he offered to restore possession of this property to Brittain Brothers Company, and that their duly authorized agent refused to accept the same, and told William T. Davis that he could not accept possession of the same; if you should find that to be true, although you might find that he remained in possession, if you find that to be true, then question number five should be answered in the affirmative.” Movant insists in the fifth special ground of the motion for new trial that the court erred in
The judge gave to the jury the instruction last quoted, with this addition: "If you find that he notified the duly authorized agent of the defendant in this case that he was returning the property to them, and vacated the property, and thereafter did not exercise any right of ownership or possession thereto, if you find those facts to be true, then, gentlemen, you should answer that question in the affirmative, that is, yes. On the other hand, if you find that he made no effort to restore possession to Brittain Brothers Company, or if you find that he did, but thereafter remained in possession, either by himself or through a tenant, and that the tenant was responsible to him, that is, William T. Davis, then, and in the event you find either of these facts to be true, it would be your duty to answer that question in the negative, that is, no.” Movant insists that the judge made this charge unintelligible to the jury, because he first charged that if the plaintiff offered to surrender possession, and this offer was refused, they should answer this question in the affirmative, although they found that he afterwards remained in possession, and in the latter part of his charge he instructed the jury that if they found that he offered to surrender possession and afterwards remained in possession, they should answer the question in the negative. We do not think that this criticism of the instruction is well founded.
After this suit was brought it was changed, at the instance of the defendant and by amendment of its answer (in which all the heirs of J. W. Davis, deceased, were made parties defendant, and who in answer tq said amendment set up their title as heirs at law to undivided interests in this land), from one strictly for rescission to one for the adjudication of the rights and title of all the parties in and to this land. In view of this radical change in the nature of the suit, we do not feel inclined to grant a new trial upon the ground of errors in the charge of the court, if there were any, upon the necessity of restoration of the premises in order to entitle the plaintiff to rescission, and of lack of evidence showing restoration or offer of restoration of the premises by the plaintiff before this
It is strenuously urged by counsel for the plaintiff and the heirs at law of J. W. Davis, deceased, and .of the deceased wife of the latter, that the defendant, Brittain Brothers Company, was not entitled to any of the relief sought by it, for the reason that it did not show that it had title to the whole or any part of the undivided interest of J. W. Davis, deceased, in this land. The contention is that this defendant undertook to show such title by the testimony of J. C. Davis; that under section 5858 of the Civil Code of 1910 he was an incompetent witness to testify to the making of the parol contract between him and his father, by which he claimed title to his father’s undivided interest in this land; and that his testimony was without probative value, and for this reason failed to establish the parol contract under which J. C. Davis claimed title to this land. No objection was urged upon the ground that this witness was incompetent to testify in behalf of the defendant as to the making of the parol contract between him and his father. If we concede that J. C. Davis was an incompetent witness to testify as to the existence of this parol contract, this would not rob his testimony of probative value. The testimony of an incompetent witness, if it is material, when received without objection, is of probative value, and will be considered and given such weight as the jury deems it is entitled to in view of his interest and other circumstances. Berry v. Brunson, 166 Ga. 523 (4) (143 S. E. 761). We do not mean to hold that J. C. Davis was an incompetent witness to testify as to the making of this parol contract between him and his father as to the purchase by him of this land from his father. This suit was not instituted or defended by an indorsee, assignee, transferee, or by the personal
We grant a new trial in this case, upon the grounds that the trial judge erred in not giving in charge the principle embraced in the request preferred by the defendant, and dealt with in the first division of this opinion, and in limiting the instruction dealt with in subdivision (c) of that division to the issue of payment of the purchase-money, and in making this instruction applicable at all to such payment. Judgment reversed.