8 Ga. App. 481 | Ga. Ct. App. | 1911
Sweatt sued Jay for the recovery of $200 which he had paid on the purchase price of certain land bought from Sweatt under a parol executory saie, under which Sweatt had been admitted into possession, and for $30 paid out for the making of
Primarily, the effect of the making of the parol executory contract for the sale of the land, the payment of a material portion of the purchase price, and the admission of Sweatt into possession, was such as to satisfy the statute of frauds and to create the relation of vendor and vendee in the executory sale between the parties. The legal title was held by Jay, and Sweatt acquired a substantial equitable interest in the land. But when it appeared that Jay did not have the title which he professed to have, — that he had practiced a constructive fraud upon Sweatt, the latter had the right to enforce a rescission by offering to surrender the property and to demand a repayment of the amount paid on the purchase price, plus the value of such improvements as he had put upon the premises, after deducting the value of the rent (if any) during the period in which he had occupied the land. Leyden v. Hickman, 75 Ga. 684. Counsel for plaintiff in error make the point that a contract for the rescission of an executory sale of land must be in writing, in order to satisfy the statute of frauds. Without deciding whether this is generally true or not, we are prepared to hold, and do hold, that where the circumstances of the case are such as to warrant the vendee’s rescinding for actual or constructive fraud, the parties may voluntarily agree in parol upon the amount of money that will satisfy the resulting equities flowing to the parties; and in this case they agreed upon $230 as the amount. If Jay had attempted to enforce his rights against Sweatt by suit in ejectment, standing' on the legal title reserved in himself, it would have been permissible, under our 'rules of pleading and practice and under the rules of substantive law applicable to such transactions, for Sweatt to file an equitable plea setting up the defect in the plaintiff’s title, and offering evep then to surrender the possession and to claim
We conclude that there is no reason for reversing the judgment.
Judgment affirmed.