141 Ga. 703 | Ga. | 1914
(After stating the foregoing facts.) A vendor filed his equitable petition against his vendee to enforce specific performánee of an executory contract for the sale of land. The court dismissed the petition on general demurrer.
The rule above announced was recognized by this court as early as the decision of Chance v. Beall, 20 Ga. 142. In that case it was held that where a contract for the sale of land is in writing, is certain and fair in all its parts, is for an adequate consideration, and capable of being performed, it is just as much a matter of course for a court of equity to decree the specific performance of it as it is for a court of law to give damages for a breach of contract in other cases. This ruling has since been followed. Forsyth v. McCauley, 48 Ga. 402; Jackens v. Nicolson, 70 Ga. 198; Belle Greene Mining Co. v. Tuggle, 65 Ga. 652; Crovatt v. Baker, 130 Ga. 507 (3a), 512 (61 S. E. 127). Generally the right to specific performance is mutual; and when one party can compel performance, if he so desires, so'likewise can the other. Blalock v. Wag-goner, 82 Ga. 122, 128 (8 S. E. 48). In several of the cases cited above, the proceeding was instituted by the vendor. The right to such relief on the part of the vendor is recognized in the Civil Code (1910), § 4638, where it is declared that "The vendor seeking specific performance must show an ability to comply substantially with his contract in every part, and as to all the property.”
Under the general equity practice, the decree may compel the execution and delivery of deeds or other instruments. 20 Enc. Pl. & Pr. 480, and note 2; Granville v. Betts, L. J. (N. S.) Ch. 18, 32 (a deed directed to be executed); Sterling v. Klepsattle, 24 Ind. 94, 87 Am. D. 319 (the execution of a bond for title compelled); Ogden v. Ogden, 4 Ohio St. 182 (the execution of a mortgage); Avery v. Langford, 1 Kay, 663 (an agreement to give a damage bond as part of a sale of land).
A recent case directly in point is that of Farm and Land Company of Abbeville v. Roseman, 93 S. C. 350 (76 S. E. 979), where it was held that a contract binding the vendor to convey a fee-simple title to the purchaser, and binding the purchaser to pay a specific price in cash and execute a note and mortgage on land for
Under our statute, a decree for specific performance, requiring the execution of a conveyance to be made, operates to transfer title without the actual execution of a conveyance; and thus the necessity of enforcing the decree requiring the signing of the deed is obviated. Civil Code (1910), § 5425. But this provision does not destroy the general power of a court of equity to decree specific performance in favor of a vendor, upon a proper ease being made. Here the parties were not in a situation where an immediate conveyance would be required, so as to make the section above cited applicable. The circumstances rather invoke the provision of the next section (§ 5426), which declares that a superior court has full power to mold its decrees so as to meet the exigencies of each case; and has full power to enforce its decrees when rendered. Doubtless the payment of money past due by contract would not be enforced by process of attachment, but the decree could be so molded as to do complete justice, making proper provision as to the amount due, and requiring the defendant to execute the note for the amount not due.
Upon the trial the rights of the parties respectively can be determined, an accounting can be had, and a decree can be shaped for the specific performance of the written contract according to its provisions.
It was error to dismiss the petition on general demurrer.
Judgment reversed.