100 Ga. 383 | Ga. | 1897
On March 27th, 1884, F. C. Tate, William Tate and S. C. Tate, by /written instrument, leased for ninety-nine years, with privilege of renewal in perpetuity, to Clements and others, all their interests in the marble in certain lands, describing them by number, section and district, in Pickens county, Ga. The consideration was $23,000, and in addition thereto a royalty of three cents per cubic foot on all marble quarried and sold from these lands, the royalty not to be less than $2j000 mor more than $3,000 per annum payable quarterly, and if not paid within thirty days after maturity the lease was to be forfeited and the marble to revert to the Tates. On February 11th, 1891, William and F. O. Tate entered into the following contract with James P. Harrison:
“Georgia, Fulton County. — Be it known that Wm. and F. C. Tate of Pickens county, Ga., and Jas. P. Harrison of*384 Fulton county, Ga., agree- and contract as follows to witr Wm. and F. 0. Tate agree to assign and transfer to Jas. P. Harrison an undivided three fourths (f) interest in the-lease of the marble interest in lot of land number three hundred and twenty-two (322) in the 5th district and second section of Pickens county, Ga., an undivided -one- half' (-|-) interest in the lease of the marble interest in lots numbers three and thirty-six (3 & 36) in the fourth district and second section of Pickens county, and to guarantee the payment of twelve hundred dollars per annum from said interest to be assigned, during the continuance of said lease, to said Harrison, said sums to- be collected and applied as hereinafter stipulated. The lease hereinbefore referred to is the lease made- by ¥m., S. C. & F. O. Tate to- Henry 0. Clements and others on March 27th, 1884, and which was recorded on March 29th, 1884, in the office of the clerk of the superior court of Pickens county, Ga. The said Win. & F. 0. Tate further agree to- convey -to said J. P. Harrison three fourths of the reversionary interest to the marble of said lot 322, subject, however, to the rights of Samuel Carter; and also to convey to said Harrison one half of thereversionary interest to the marble on lots three and thirty-six above mentioned; said conveyance to be by warranty deed except as to- 2-21 parts of the marble interest in lot Ho. 3 6 to which they are to give said Harrison a quitclaim. The term ‘reversionary interest’ as used above means the interest in the marble upon said lots, subject to the lease above mentioned. Said Wm. & F. 0. Tate further agree to convey to-said Harrison by warranty deed an undivided one half interest in one hundred and twenty acres of lot 290 in the-5th district and second section o-f Pickens county, being all of said lot except the forty acres deeded to- John Hendrick, as appears in Book “D,” p. 213, of the books of deeds in the clerk’s office superior court of said county of Pickens; also the undivided one half of sixty acres of lot Ho-. 287 in the 5th district and second section of Pickens county, being-the sixty acres deeded to James Yaughn and Caleb Griffith, as appears of record in said clerk’s office in deed book “0,” pp. 182 and 183; also eighty-nine acres'more or less off the east side of lot 254 in the 5 th district and second section of' Pickens county, and fifteen acres of lot Ho. 287 in the 5th district and second section of said county, more particularly*385 described in a deed from TV. B. Tate, adm’r of Caleb Jones; to B. C. Tate; also lot Ho. 306 in the 12th district and' second section of said county, except one half the mineral interest therein, reserving to B. C. Tate the privilege of getting firewood therefrom for his personal use and that of’ his family; also twenty acres of lot 307 in the said 12th district and second section, lying opposite the present residence-of B. C. Tate, bounded on the north by the Bull Gap road, east by what is known as the TV. II. Simmons property, and south by the Marietta & Horth Georgia B. B., said tract being somewhat triangular in shape, running to- a point where Bull Gap road crosses the railroad.
“The consideration of the above agreements is, that the said Harrison has already paid the sum of one thousand dollars, the receipt of which is hereby acknowledged, and he is-to give his promissory notes payable to B. C., TVm. B. and P. M. Tate, of the date of this contract, one for one thousand dollars payable in sixty days, one for fifteen hundred dollars payable in four months, one for fifteen hundred dollars payable in six months, one for five thousand dollars payable within twelve months, one for six thousand dollars payable within eighteen months, and one for six thousand dollars payable within two years; the three first mentioned notes to be endorsed by Z. D. Harrison, and all the notes to bear interest at the rate of six per cent, per annum from the date thereof. It is further agreed that TVm. and B. C. Tate are to collect the rental accruing on said lease until the final payment herein provided for, and deduct the amount thereof from the note last to fall due. The said B. 0. Tate is to have the right to- the farming interest in said lot 305, until the maturity and payment of- the notes above mentioned. It is expressly understood that nothing herein contained is to interfere with the rights of the said Clements and others or their assigns under the above mentioned lease; and that the guarantee by TVm. & B. C. Tate as to the payment of said twelve hundred dollars per annum is not to extend or be binding beyond the time of a.forfeiture of such lease by said Clements and others or their assigns, should such a forfeiture happen. . ■
“The words Three fourths’ and ‘to’ interlined before signing. This Bebruary 11th, 1891. ' TVm. Tate,
“Witness: W. B. Tate, ’ ’ \ B. C. Tate,
P. M. Tate. Jas. P. Harrison.”
*386 “February 24th, 1891. Received and accepted in lieu of the notes mentioned in the foregoing contract, the following notes, to wit:
“One for $955 due two- months after date.
“One for $1,500 due four months after date.
“One for $1,500 due six months after date.
“One for $4,000 due twelve- months after date.
“One for $1,000 due twelve months after date.
“One for $6,000 due eighteen months after date.
“One for $6,000 due twenty-four months after date.
“All signed by Jas. P. Harrison, and the one for $4,000 due twelve months after date endorsed by Z. D. Harrison, and all drawing six per cent, interest from February 11th, 1891. F. O. Tate,
P. M. Tate,
W. B. Tate.”
On February 11th, 1892, the Tates and Jas. P. Harrison entered into a second contract, which was as follows:
“Whereas William and F. O. Tate agreed to sell to J. P. Plarrison certain marble and other interests in and to lots of land numbers three and thirty-six in the fourth district and second section, and three hundred and twenty-two, two hundred and ninety, and two hundred and eighty-seven, in the fifth district and second section, and other lots and parts of lots of land in Pickens county, all of which are fully set forth in a contract made by said parties on the 11th day of February, 1891, and whereas said Plarrison gave to F. C. Tate, W. B. Tate .and P. PI. Tate certain promissory notes, the said notes being the purchase-money for said land, and whereas some of said notes are now past due: it is hereby agreed by and between the parties of said contract, the holders of said notes, and Z. D. Harrison, endorser on one of said notes, that in consideration that said notes falling due between the date of said contract and the first day of December, 1892, will not be sued or put out for collection by said Tates until said first day of December, 1892, said J. P. Plarrison agrees that all of said notes given for said land falling due before the 1st of December, 1892, or now due, shall draw 8<f0 interest instead of 6$ interest after they fall due or from the date they fall due, except the note endorsed by Z. D. Harrison, which shall draw 6$; and that the title*387 to the lands described in said contract of February 11th, 1891, shall remain in ¥m. and F. C. Tate until all the notes given therefor are fully paid.
“This Feby. 11th, 1892. P. M. Tate,
W. B. Tate,
Jas. P. Harrison,
“Assented to. F. 0. Tate,
Z. D. Harrison. ¥m. Tate.”
On December 13th, 1892, F. 0., ~W. B. and P. M. Tate 'brought two suits in the city court of Atlanta: one ag'ainst Jas. P. Harrison as maker, and Z. D. Harrison as endorser, on the note for $4,000, dated Feb. 24th, 1891, and due twelve months after the date thereof; and the other against Jas. P. Harrison, on the six notes signed by Jas. P. Harrison alone, dated Feb. 24th, 1891, and due at different times. To the petition in the suit last mentioned a copy of the contract of Feb. llth, 1892, was attached as an exhibit. Jas. P. Harrison filed his pleas alleging, substantially; the following, viz: that the consideration of the notes sued on is stated in the contract of Feb. 11th, 1891, a copy of which is attached as an exhibit to bis pleas; that the material part of said contract, and that part without which he would not .have executed the notes, is the agreement, (1) to transfer and assign the undivided interest of F. 0. and ¥m. Tate in the lease of the marble interest in the lots of land numbers 3, 36 and 322 mentioned in said contract, (2) to guar.antee to him a payment of $1,200 per annum from said in-terest during the continuance of the lease mentioned in the contract, (3) to convey to him, by warranty deed, the reversionary interests of F. C. and "Win. Tate in the marble in said lots of land, (4) to convey to him, by warranty deed, the other lands described in said contract; that no transfer .and assignment to him of said interests has been made, that no guaranty lias ever been given to him, and that no warranty deed, either to the reversionary interest in the marble, or to any of the lands described in the contract, has ever been delivered to him; that the agreements on the part of the
On motion of plaintiffs’ counsel, the court ruled out all the testimony of James P. Harrison, and directed verdicts for plaintiffs in both cases. Defendants made a motion for a new trial, it being agreed that one motion for a new trial could be made to cover both cases. The motion was overruled, and defendants excepted.
1. The defense in each of these two cases depended upon the real meaning of the contract made Feb. 11th, 1892, construed in connection with the one made Feb. 11th, 1891. By reference to this last mentioned contract, it will be seen that William and F. 0. Tate agreed therein, (1) to assign and transfer to James P. Harrison all their interest in the royalty under the Clements lease; (2) to guarantee to him that the profits from the royalty to be assigned would amount to $1,200 annually during the continuance of the lease; (3) to convey to him, by warranty deed, all their reversionary estate in the marble, except' 2-21 parts of the marble in lot 36, to which they were to give him a quitclaim; and (d) to convey to him, by warranty deed, an undivided half interest in certain non-mineral lands in Pickens county. The contract then declares that “the consideration of the above agreements is that the said Harrison has already paid the sum of $1,000,” and is to give certain notes. The payment of the money and the giving of the notes are not stated to be in consideration of the sale and conveyance of the non-
2. The court below properly construed the instruments in question, and committed no error in ruling out the oral •evidence and directing verdicts in the plaintiffs’ favor.
Judgment in each ease affirmed.