Jackens v. Nicolson

70 Ga. 198 | Ga. | 1883

Craweord, Justice.

This bill was filed for the specific performance of a contract in the purchase of certain l’eal estate at public auction, and where the purchaser refused to take the deed and pay the contract price. The bill was dismissed, on demurrer, for the want of equity, and because the complainant had an adequate and complete remedy at law.

Conceding that the memorandum of the auctioneer-made at the time of the sale is all that is required bylaw, the only question in the case is, whether the complainant is entitled to a specific performance of the contract.

This question, we think, is clearly settled by this court in the cases of Chance vs. Beall, 20 Ga., 142, and Forsyth vs. McCauley, 48 Ib., 402. In the first it was held: “Where a contract 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 a specific performance as it it is for a court of law to give damages for it in other-cases.” In the last, the above ruling was re-affirmed, and the principle again laid down that “ in written contracts for land, where they are certain, fair and capable of being: performed, equity will decree their performance.” Story’s. Eq. Jur., §746; Hilliard on Vendors, 421, 454.

How far at the hearing the allegations of the bill may be sustained by the proof, it is unnecessary here to consider. We put the case, under the demurrer, upon the= rulings cited supra. That the auctioneer was the agent, of both parties to bind them, if his entries were legally made, is declared by §2630 of the Code. If, then, this is. shown, the contract will be held to be in writing, then it. must be further shown that it was certain, fair in all its. parts, and capable of being performed before a decree for that purpose will be rendered.

Where the specific performance would be decreed at. the instance of one of the parties, it will be so decreed at. the instance of the other, “ although the relief sought by him is merely in the nature of a compensation in damages, or value”; u for in all such cases the court acts upon the-ground that the remedy, if it exists at all, ought to be* mutual and reciprocal, as well for the vendor as for the; purchaser.” 1 Story’s Eq. Jur., §723; Fry’s Specific Performance, m. p. 10., §23.

Judgment reversed.