The tender made in 1911 by the obligee in a bond for title of the balance due, with a condition attached that he be given a deed executed by the obligors and all the heirs of a deceased former owner of the property, was invalid as a tender under the Code, § 20-1105, in that it was not unconditional, and it did not stay the accrual of interest since it was not continuing. Since by written agreement the parties submitted the case on the single issue whether such tender was valid or invalid, a judgment against the obligee was demanded.
No. 16718. JULY 12, 1949. REHEARING DENIED JULY 27, 1949.
This action in ejectment, brought in the fictitious form, has twice been before this court.
Heath v.
Miller,
197 Ga. 443
(
29 S.E.2d 416), and
Heath v.
Parker,
199 Ga. 241
(
33 S.E.2d 904). The pleadings are set forth in the report of those cases, and by agreement and stipulation the parties fixed the question of law to be decided, and have by agreement eliminated any issue of fact and submitted the case to the trial judge, the stipulations being as follows: "It is agreed that parties named in petition are the sole heirs at law of George A. Heath. It is agreed that should the court decide in favor of plaintiffs that the matter of mesne profits be given a jury for determination of amount. It is agreed between the parties that J. T. Parker entered upon the lands in controversy in the year 1909 under a bond for title executed by J. A. Heath and E. H. Heath. Mr. Parker paid the obligations regularly until the year 1911, when and at which time he offered to pay J. A. Heath, an obligor, the
sum of $174, representing the balance due, and requested performance of the terms of the bond, namely the execution and delivery of a deed to the property as called for in the bond. Mr. Parker insisted on a deed by all the heirs and declined to make payment of the balance due until such deed was obtained. Mr. Parker continued in possession of the property and he and his grantee, O. L. Miller, to whom Mr. Parker conveyed the lands September 21, 1942, are now in possession of the property and were in possession of the property from 1909 to the present time and were in the possession of the property at the time of the filing of this suit, August 24, 1942. At the time Mr. Parker accepted the bond for title from J. A. Heath and E. H. Heath, he had knowledge that the property was owned formerly by George A. Heath, and that George A. Heath was dead at the time, and that there had been no administration on the estate, and Geo. A. Heath was in possession of the property at time of his death. Mr. Parker knew that John A. Heath and E. H. Heath were in charge of the property and Mr. Parker dealt with them."
"The parties plaintiff and the defendants, J. T. Parker and O. L. Miller (all other defendants except defendant in possession having been dismissed), having on July 3, 1946, entered into a stipulation as to all the issues of fact in controversy in this ejectment suit, except as to mesne profits, and this case having been called for trial at this the July term, 1947, of this court and continued, the parties hereto stipulate as to the mesne profits as follows: In the event the plaintiffs are entitled to a judgment and decree for the land here in controversy as against the tender of defendants of $174 conditioned upon all the heirs of George A. Heath simultaneously executing and delivering a deed to the land to J. T. Parker, then the plaintiffs shall also recover of the defendants the sum of $300 as mesne profits, but not the $174. In the event the defendants should be entitled to recover the land under the terms of the tender as stated above, then the plaintiffs shall only recover the sum of $174. It is further stipulated between the parties that the bond for title as referred to in the pleadings shall be surrendered into court and canceled in any event, and if the same shall be lost or destroyed, it shall be properly established and duly decreed canceled. It is further stipulated that, all questions of fact having been stipulated by
the parties, the question of law shall be determined by the court without the intervention of a jury at the courthouse in Muscogee County, upon the convenience of counsel for the parties and the court."
On April 4, 1949, the trial judge without a jury entered a decree reciting that the defendants, having tendered into court the sum of $174 as payment of the sum agreed to between the parties under the stipulations as the balance due on the purchase-price, and the defendants having offered an amendment on December 14, 1948, it is sanctioned, and it is further ordered that the prayers contained in the plea be sustained and the plaintiffs are directed to execute a deed to O. L. Miller to the land in question. It was further decreed that the defendants have fully and completely complied with the obligations under the bond. It was ordered that the defendants recover costs, and the clerk was directed to pay to the plaintiffs the sum of $174 which the defendants had deposited into court. To this judgment the plaintiffs excepted.
Irrespective of whether the bond executed by only two of a large number of heirs would be sufficient to sustain the defendants in this case, and irrespective of forty years during which the defendants, according to the stipulations, have had possession of the premises — the parties, for reasons satisfactory to themselves, have seen fit to eliminate all issues and rights except the sole question whether or not the tender made by the defendant Parker in 1911 was a valid tender under our law, and, hence, the equivalent of payment. The trial judge based his opinion upon this question alone, held that the tender was valid, and decided the case in favor of the defendants. A tender which will stop interest must be unconditional and continuing.Cothrans v. Mitchell, 54 Ga. 498; Gray v. Angier,62 Ga. 596; Fitzgerald v. Vaughn, 189 Ga. 707
(7 S.E.2d 78). Under the Code, § 20-1105, the only conditions that can be attached to a tender are either a receipt in full or a surrender of the obligation. It is obvious that the alleged tender in this case attached a condition not authorized by law. A tender of the amount due by the obligee in a
bond for title on the condition that the obligor make and deliver to the obligee the conveyance called for by the bond for title was held in DeGraffenreid v. Menard, 103 Ga. 651
(30 S.E. 560), not to be a valid tender under the Code, § 3-728, in that it was not unconditional. To the same effect see McGehee v.Jones, 10 Ga. 127; Cothran v. Scanlan, 34 Ga. 55;Miller v. Swift, 39 Ga. 91; Elder v. Johnson, 115 Ga. 691
(2) (42 S.E. 51); Morris v. Continental Ins. Co.,116 Ga. 53 (42 S.E. 474); Terry v. Keim, 122 Ga. 43
(49 S.E. 736). In the present case the obligee not only attached a condition that the obligor execute the conveyance called for by the bond, but that a conveyance from all of the heirs of George A. Heath, the deceased owner, be procured. As recently as Irvin
v. Locke, 200 Ga. 675 (38 S.E.2d 289), this court held that a tender of the amount due under a bond for title upon the condition that the obligor make a deed in accordance with the bond was not a good and unconditional tender. In Renfroe v.Butts, 192 Ga. 720 (16 S.E.2d 551), it was held that, although it was alleged that a tender had been made, the absence of an allegation that such tender was a continuing one caused it to be insufficient to stop the interest on the debt. We think, therefore, that it is unnecessary to discuss further these two fatally defective features of the alleged tender, to wit, that it was not continuing and that it was conditional. From what has been said it must be held that the parties having submitted the case on the single issue whether or not the tender was valid, and the said tender being invalid, the agreement between the parties demanded a judgment in favor of the defendants.
Judgment reversed. All the Justices concur.