Dowling v. Doyle
102 S.E. 27
Ga.
1920
Check Treatment
George, J.

(After stating the foregoing facts.) As a general rule, injunction will not issue to restrain a landlord who has sued out a dispossessory warrant against a tenant alleged to be holding over beyond his term, upon the ground that the tenant has a good defense to the warrant, of which he is unable to avail himself by filing a counter-affidavit, because, by reason of his poverty, he can not give the bond which the statute requires in connection with such affidavit. Hall v. Holmes, 42 Ga. 179; Huff v. Markham, 70 Ga. 284; Brown v. Watson, 115 Ga. 592 (41 S. E. 998). The general rule does not apply in this case. Mrs. Dowling was in the actual possession of the land. She claimed title thereto. Her suit for specific performance was pending at the time the defendant in that suit instituted eviction proceedings against Mr. Dowling. *731The warrant to evict, if executed, will have the effect to dispossess Mrs. Dowling, the plaintiff in the specific-performance suit. In such circumstances injunction should issue if it appears that the suit for specific performance is in good faith and is apparently based on good grounds. Pace v. Neely, 113 Ga. 901 (39 S. E. 420).

Before considering the merits of the suit for the specific performance of the contract, two preliminary matters require notice. The agent and attorney representing Mrs. Dowling was permitted to testify to transactions with the deceased Nace. Counsel for the defendant in error contends that this evidence was illegally received and considered, and cites the case of Kramer v. Spradlin, 148 Ga. 805 (98 S. E. 487). In that case it was held that a legatee was an “assignee” of the testator, within the meaning of the Civil Code, § 5858. Mr. Nace made no will. There was administration upon his estate. There being no. debts, the administrator consented to a division of the realty by the heirs. The administrator was not a party to the suit. It appears that the evidence was admitted without objection. No question, therefore, is presented for decision here. See, however, Oliver v. Powell, 114 Ga. 592 (40 S. E. 826). It is urged that the evidence, being illegal, should not be considered, although not objected to in the court below. This court has heretofore suggested that evidence illegally admitted without objection may be considered by the court if the evidence has probative value. If the evidence has no probative value, as for instance if it is purely hearsay, the court should not consider it, although admitted without objection, for the obvious reason that it proves nothing. The second matter to which attention is directed is the order of the court. Had the judge put his refusal of the interlocutory injunction on the facts which were controverted, or had he denied the injunction generally, the case would fall within the general rule that the discretion of the judge in granting or refusing interlocutory relief upon disputed issues of fact will not be controlled, unless manifestly abused. However, the judgment itself clearly discloses that the judge did not exercise a discretion. The judge found that the contract, “not being in writing, is too indefinite to be enforcible.” Unless this conclusion — in final analysis a legal conclusion — is justified, the judgment refusing an interlocutory injunction should be reversed. Head v. Bridges, 72 Ga. 30 (2); Spires v. Wright, 147 Ga. 633 *732(2) (95 S. E. 232). The contract was in parol. The making of the contract and the terms thereof, except in the particulars noted in the statement of facts, were admitted by the defendant. The evidence clearly discloses that Mrs. Dowling was the owner' of an equity of considerable value in the house and lot levied upon, and that she had arranged to have the property bid in by a third party for her benefit at the sheriff’s sale. At this juncture Mr. Nace entered with Mrs. Dowling into the parol contract which she seeks to have specifically enforced. At the sale third parties submitted bids. They were advised of the agreement by Mr. Nace, and, being so advised, withdrew their bids. The validity of the contract, though in parol, is scarcely open to question. In Collins v. Williamson, 94 Ga. 635 (21 S. E. 140), it was held: “One who, at the instance of a vendee of land who was in possession under a bond for titles with none of the purchase-money paid, bid off the land at a sheriff’s sale, under a parol agreement with the vendee, the defendant in execution, that he would buy in the land, advance the money, and take the sheriff’s conveyance to himself for the benefit of such vendee, and who, while the bidding was in progress, discouraged bidding by another by stating that he was bidding in behalf of the vendee, holds as trustee for the latter such title as he derived from the sheriff, and on being paid or tendered in due time the amount of his bid and all other money advanced by him in consequence of his purchase, with interest thereon, may be compelled by decree to convey the premises to said vendee by release or quitclaim deed.” See also Chastain v. Smith, 30 Ga. 96; Rives v. Lawrence, 41 Ga. 283; Gordon v. Spellman, 145 Ga. 682 (89 S. E. 749, Ann. Cas. 1918A, 852).

According'to the undisputed evidence in this case, the property was worth approximately $4500. The amount of the judgments, principal and interest, was approximately $2800. Mr. Nace bought the property for only $500. Mrs. Dowling’s position is therefore somewhat similar to that of a purchaser under a parol contract, in actual possession, with a considerable portion of the purchase-money paid. But for the agreement the property might have been purchased at the sheriff’s sale by Mrs. Dowling, or some one for her, and her equity therein preserved. Had not bidders been deterred, the property presumably would have brought its full value, and Mrs. Dowling would have received the proceeds after *733the payment of the fi. fas. It would, therefore, be inequitable to hold that Mrs. Dowling is not entitled to specific performance of the contract, upon the ground that the contract was not in writing. But, as we have already seen, the defendant admits the contract, and the only controversy is with respect to the time in which Mrs. Dowling had the right to redeem the property. We recognize the rule that whether the contract be such as is provable by parol or is required., by the statute of frauds to be in writing, it must be certain and unequivocal in all its essential terms, either within itself or by reference to some other agreement or matter, or it can not be specifically enforced. Miller v. Cotten, 5 Ga. 341 (4); 2 Story’s Eq. Jur. § 1053; Pomeroy on Contracts, § 159 et seq. It is generally said that the amount of certainty required in the specific performance of a contract is greater than -that in an action for damages at law. “Eor, to sustain the latter proceeding, the proposition required is the negative one, that the defendant has not performed the contract, — a conclusion which may be often arrived at without any exact consideration of the terms of the contract; whilst in proceedings for specific performance it must appear, not only that the contract has not been performed, but what is the contract which is to be performed.” Ery on Spec. Perf. § 380. It has been pointed out that it would perhaps be more accurate to say that the difference between the two' classes of cases is not in the amount or degree of the certainty required, but in the extent of the certainty. It is, however, established that the certainty required must extend to all the particulars essential to the enforcement of the contract. It is essential that the contract be certain and definite as to the promise or engagement, as to the parties to whom the conveyance is to be made, as to the description of the subject-matter, as to the consideration of the contract, and as to the time and mode of performance. According to the undisputed evidence, the contract between Mrs. Dowling and Mr. Nace was certain and definite as to the agreement to convey, as to the consideration to be paid by Mrs. Dowling, as to the party to whom the consideration should be paid, to whom the conveyance should be made, and as. to the description of the property to be conveyed. Nor do we think there is such uncertainty as to the time of performance as to defeat the right of the plaintiff to the relief sought. In all cases like *734the present, “the certainty required must be a reasonable one, having regard to the subject-matter of the contract, and the circumstances under which and with regard to which it was entered into.” Fry, Spec. Perf. § 380, and cases cited in note. According to the evidence for the plaintiff, no specific time was at first fixed in which she should pay the fi. fas. and redeem the property, but she should have the right to occupy the house and the right to redeem so long as she continued to pay the agreed monthly rental. When Mr. Dowling decided to enter the military service it was agreed that Mrs. Dowling should have until the discharge of her husband from the military service, and until his return, in which to pay the judgments. Moreover, the evidence for the plaintiff tended to show that Mr. Nace at all times recognized the validity of the contract, and that the defendant likewise recognized its validity and never repudiated it until actual tender made. According to the evidence for the defendant, Mrs. Dowling had the right under the contract to redeem the property within six months, from the date of the sheriff’s sale, and at no time thereafter. While there is a clear conflict in the evidence, there is no uncertainty as to the time in the evidence offered by either party. If Mr. Nace agreed to allow Mrs. Dowling to redeem the property at any time while she remained in possession, by the payment of the stipulated monthly rental, which was to cover interest, taxes, and insurance, and, while the agreement was still of force, consented to an extension of time until the happening of a definite event (the discharge of Mr. Dowling from the military service and hisjeturn home), the contract is not wanting in certainty as to the time of performance. If time, were of the essence of the contract (but in this case, according to the plaintiff’s evidence, the failure to redeem was taken care of by a fixed monthly payment to cover interest), it would be within the power of the parties to waive that condition. The ease for the plaintiff is even stronger. She alleges (and her evidence tended to support the allegation) that she tendered unconditionally the full amount of the fi. fas. before the defendant attempted to repudiate the contract. From the -foregoing it follows that the judgment refusing an interlocutory injunction upon the ground stated by the judge must be reversed.

Judgment reversed.

All the Justices concur.