119 Ga. 534 | Ga. | 1904
Julia Horne and others brought an action against Mullis, alleging in their petition: Plaintiffs are the widow and children of Isaac Horne. On January. 1, 1890, Isaac Horne executed and delivered to the Guaranty Company of Georgia a mortgage deed to certain described tracts of land, to secure the payment of a loan of $600. The land mortgaged was worth $2,500, and is still worth that sum. After executing the mortgage, to wit, on July 24, 1890, Isaac Horne executed to petitioners a warranty deed to the land described in the mortgage, reserving to himself the use and control of the land during his life. This deed was duly recorded. The mortgage debt not being paid at maturity, the mortgage was duly foreclosed and the property advertised for sale about the year 1896. A few days before the sale was to take place, Isaac Horne entered into an arrangement with the defendant, who was his. son-in-law, under which the defendant was to buy the land and permit Horne to redeem it within two years' by paying the amount of the bid, together with interest and the necessary expenses which had been incurred. At the time this agreement was entered into, the defendant Mullis had actual notice of the deed from Horne to petitioners. The purpose of Home in making the agreement with defendant for a reconveyance of the property was to preserve for himself a home for life and to secure the land for his wife and children, with the incumbrance
As against a general demurrer, the petition set forth a cause of action. See Burnett v. Vandiver, 56 Ga. 302. The distinction between this case and Roughton v. Rawlings, 88 Ga. 819, is that in the case cited the two persons who made the agreement to divide the land after the sale had no interest whatever in the property which was to be sold. The distinction is manifest when we consider the opening sentences of the opinion by Mr. Chief Justice Bleckley, on pages 821 and 822, where he says: “The plaintiff has parted with nothing which he possessed or owned before. He has the same amount of money and property, and has rendered no service nor caused any to be rendered. What he has missed by reason of the defendant’s refusal to perform the verbal agreement is only the gain which he would have derived from the performance if the defendant had not violated his promise. The mere' right to bid for the property at the executor’s sale was not itself property, nor the subject-matter of bargain and sale. The non-exercise of that right by forbearing to bid was therefore not a consideration for the agreement which will take the case out of the statute of frauds by reason of part performance.” The case should not have been dismissed, and the judgment must therefore be reversed. A reversal of the judgment on the general demurrer renders it necessary to pass upon the questions made by the special demurrers, as the judge sustained all of the demurrers. There was no merit in the demurrer which raised the question that copies of certain deeds and other papers were not exhibited to the petition. The allegations in reference to these papers were mere matters of inducement and did not constitute the cause of action, nor was the relief prayed for based entirely thereon. Under such circumstances it was not necessary to exhibit copies of such papers to the petition. Harp v. Investment Company, 108 Ga. 179 ; Civil Code, § 4963. Especially would this be the case when
Judgment reversed.