150 Ga. 122 | Ga. | 1920
Brown Loan and Abstract Company (hereinafter called the Brown Company, and the plaintiff) brought a petition against Mrs. Pauline Rudich, I. A. Willis, and certain other parties, seeking injunction, a decree for specific performance,' and other equitable relief. Upon interlocutory hearing the court refused an injunction, and the plaintiff sued out its bill of exceptions to the Supreme Court.
“The undersigned hereby agrees to buy through Turman & Calhoun, Agents, the following described property, to wit: . . for the sum of twenty-thousand ($20,000) • dollars, to be paid as follows: $6,000 cash, assume loan of $6,000 at 8% now on'property, with interest from date of sale, $4,000 on or before December 1, 1919, and $4,000 on or before December 1, 1920, which two last-named deferred payments bear interest at the rate of 7% payable annually. It is agreed that the vendor shall furnish good and marketable title to said property, and purchaser shall have a. reasonable time in which to investigate the same. In the event the title is objected to, the vendor shall be furnished with a written statement of all objections and be allowed a reasonable time thereafter in. which to furnish valid title. It is agreed that such papers as may be legally necessary to carry out the terms of this*124 contract shall be executed and delivered by the parties at interest as soon as the validity of the title to said property has been established.
“Sjiecial Stipulations. It being agreed that this trade is being made subject to examination of title. Should there be found any defects or uncancelled liens which might interfere with giving a good negotiable title, a list of same will be furnished by the purchaser to the seller, and reasonable length of time allowed in which to clear and remove same.
“This proposition is open for acceptance until the end of the 7th day of December, 1918.
[Signed] Brown Loan & Abstract Co., by W. L. Brown, Prest.
Eastman, Ga.
“ Conditional Earnest Money Receipt. Received of Brown Loan & Abstract Co. the sum of five hundred ($500) dollars as earnest money and part payment of purchase-price of property, as described in the above copy of original proposition. Said earnest money is to remain with Turman & Calhoun during the term of said proposition, and is subject to the acceptance by the owner of said proposition, and is to be returned to purchaser in the event proposition is declined. This the 3rd day of December, 1918.
[Signed] Mrs. Pauline Rudich, by H. Rudich, Agt.
“I hereby acknowledge receipt of the above amount of earnest money, and ratify the within contract. This March 21, 1919.
[Signed] Mrs. Pauline Rudich.”
It will be observed that this contract may be divided into three parts. The first is an offer by the plaintiff to buy the land, with certain special stipulations annexed; the next part is the receipt of $500 paid as earnest money and part payment of the purchase-price of the property; and the concluding portion of the contract is signed by Mrs. Rudich herself, and is an acknowledgment of the receipt of the earnest money, and contains an express ratification of the contract. The offer first made was open for acceptance until the 7th day of December, 1918. But there were subsequent negotiations, and the offer remained' open; the receipt for the part payment continued outstanding; and the ratification of the contract was signed by Mrs. Rudich on March 21, 1919. This writing, or these writings taken together, constitute a contract for the sale of the' land in question. It provided
We have not reached the same conclusion in this case as the counsel who urge the cases cited as authority here; but we do not in any way impinge upon the doctrine of those cases just referred to. Nor do we deny that the question of reasonable time was to some extent involved in this case. But the expiration of a reasonable time after the negotiations were entered upon and after the alleged defects in the title were cleared up did not authorize Mrs. Budich, of her own volition and without reference to the status of the plaintiff as a party to the contract for the sale of the land, simply to declare the contract at an end and then to execute another contract with other parties for the sale of the land, as if she had not executed the contract to sell to the Brown Company. The negotiations with reference to this trade and the correspondence between the plaintiff and Mrs. Budieh’s agents, Turman & Calhoun, who conducted the negotiations for Mrs. Budich, continued through several months; evidently for a while in perfect good faith, each trying to meet the requirements of the other, one making bona fide objections to certain defects in the title, and the other, with equal' bona tides, endeavoring to remove those objections. And it may be conceded that ■ towards the close of the correspondence between Turman & Calhoun and W. L. Brown, who conducted the negotiations and the correspondence for the Brown Company, it began to appear that Brown was not able, even after his objections to the title had been removed, to comply with his undertaking as to the payment of the money.
We have given the contents of this letter careful consideration, in order to decide whether or not it evinced such an intention on the part of the plaintiff to abandon the contract as made and
But even if these parties had not had notice, it could not be held that they occupied the favorite position of an innocent purchaser without notice. They had paid a part of the purchase-money and had a bond for title. If they had had no notice of Brown’s equities, it was a case of one equity against another, and the prior equity in point of time was the superior equity. If as a matter of fact Willis, or his associates or transferees, had paid a part of the purchase-money without notice of the equities of the Brown Company, it would then become a question whether or not, under proper pleadings, they might obtain a judgment for the money innocently paid over.
Judgment reversed.