173 Ga. 11 | Ga. | 1931
Keiley bought from Citizens Savings Bank & Trust Company five parcels of real estate, two tracts in Greene County,
Keiley filed an answer, which was twice amended. Attached to the answer was an executory.sales contract signed by both parties, and a deed subsequently dated effectuating the agreement. As to the parcels situated in Florida the contract mentioned recites: “892 acres, more or less, formerly known as the K. R. White property, situate at or near the town of Madison, Florida, same being situated most specifically about three miles easterly from Lovett, Fla., which is the nearest railroad station on the South Georgia Railroad and is 14 miles northwesterly from Madison, Fla. This property has one or two residence dwellings, together with about six tenant houses with corresponding number of barns and other buildings. The exact number of these are unknown at the present time. [Italics ours.] Property formerly known as the H. E. Beatty land. This tract is likewise near Madison, Fla., but situated in Jasper, Hamilton Count}', Fla., being four miles off the main road going through the town of Jasper. It has a main dwelling and other smaller tenant buildings, barns, well, etc., and consists of 160 acres, more or less.”
The deed conveying the first-mentioned piece of property to the defendant is attached to the answer as an exhibit, and contains the following description: “the following described land and real estate lying and being in Madison County, Florida, to wit: All
Ke'iley’s answer sets up that at the time of the execution of the contract referred to he “was ill, confined to his room, under the care of a physician, and physically unable to inspect the property” in Florida; that he had not prior to the contract “inspected or had any opportunity to inspect” the same; that the deed conveying the property to him was executed and delivered immediately after the contract was closed and before he “had an opportunity to inspect the Florida properties;” that immediately before the contract of sale was executed and the deeds accepted by the defendant the plaintiff and its agents, for the purpose of inducing him to act, fraudulently represented that “there were certain houses on the property [in Florida], when in fact there were no houses on the said property, and further orally represented to the defendant that there was a certain amount of acreage, to wit 892 acres of land in the K. P. White property . . when in fact there were only 777 acres;” that ‘“all of these statements were false and untrue and known by the plaintiff and its agents to be false and ¡untrue and were made by the plaintiff to the defendant for the purpose of inducing the defendant to purchase the said property in Florida and to accept the deeds thereto, and said statements did induce the defendant to purchase the said property located in Florida and to accept the deeds from the plaintiff to the said property;” that immediately before the contract was entered into plaintiff showed defendant an appraisal in writing dated Dec. 27, 1921, of the Florida propertjq which appraisal showed that two residences, six tenant houses, barns, and other buildings of the value of $5100. were located on said property, and that the property consisted of 892 acres, and plaintiff represented and stated to defendant that the residences, tenant houses, barns, and other buildings as shown in the appraisal were on the property, that the same were of the approximate value as shown in the appraisal and that the property consisted of 892 acres;” that upon inspection of the Florida property after the delivery to him of the deeds he discovered that there were no houses or buildings on either tract, and that there was a shortage in the acreage of the White tract as already stated; that the price at which he purchased the tract was $10,000; that
The petitioner demurred to the answer generally on the grounds that no defense to the action was set forth; that it showed the defendant had ample opportunity to inspect the Florida properties, without alleging any reason for failure to do so, or that inspection was prevented by any act of plaintiff; and that it was shown that defendant had not, on discovery of the alleged fraud or since, offered to rescind and restore the status, but had elected to remain in possession. There were special demurrers to particular portions of the petition. All the demurrers to the answer were sustained; and the answer, except the denial of the averments of the petition as to the giving of notice for attorney’s fees, was stricken. O21 the trial the court directed a verdict in favor of the plaintiff for the amount of the debt, with interest, attorney’s fees, and costs. The defendant moved for a new trial, and the motion was overruled. Error was assigned on that ruling and on the sustaining of the demurrers and the striking of the answer. The special ground of the motion for new trial complained that no evidence was introduced “to show that any notice of attorney’s fees was ever served upon movant, and without such notice the direction by the court of the verdict for attorney’s fees was illegal and unlawful;” that the only evidence of service of such notice “was in the nature of opinion evidence,” and the issue as to attorney’s fees should have been submitted'to the jury; and that the question whether or not defendant was in fact served with such notice should have been submitted to the jury. The proof of notice as to attornejf’s fees consisted of the testimony of an attorney for petitioner, that he forwarded the notice by registered mail, and that he received from the defendant a letter in response to the notice; also return receipt for a registered
When the deed was executed conveying the property from the Trust Company to Keiley, it represented the contract as finally agreed upon and adopted. The preliminary sales contract, ex-ecutory in character, became merged into the deed. The terms of the deed became controlling, and any representations or terms contained in the executory sales contract which were not included in the deed will be treated as having been eliminated, abandoned, or discarded from the contract. Loftis v. Clay, 164 Ga. 845, 848 (139 S. E. 668). This is true because the purchaser, Keiley, is not undertaking to rescind the contract because of fraud on the part of the vendor entering into and inducing him to accept the deed as executed. He elects to abide the contract and to recover compensation for injury due to fraud. The deed contains no mention of the number of residences or outhouses or other improvements on the White property, as was the case in the executory sales contract. The petition alleges no reason why Keiley did not observe this omission from the deed, nor does it allege that the omission was unknown to Keiley. It must be assumed, therefore, that the deed, with such' omission, represented the final matured agreement between the parties. In these circumstances Keiley can not recover damages because such buildings are not on the land as stated in the executory sales contract. Keiley’s remedy for that damage was to have acted promptly upon the discovery of the alleged fraud, and to have asked for a rescission or reformation, provided he signed the contract under influences of actual fraud and was defrauded. The court, therefore, did not err in striking Keiley’s answer in so far as it sought recovery of damages in the respect mentioned.
Under a proper construction of the deed from the Trust Company to Keiley, the sale of the land was by the tract and not by the acre. Baker v. Corbin, 148 Ga. 267 (96 S. E. 428); Dorsett v. Roberds, 172 Ga. 545 (158 S. E. 236). Under the Civil Code (1910), § 4122, it is provided that “If the sale is by the tract or entire body, a deficiency in the quantity sold can not be apportioned.” That section also provides: “If the quantity is speci
The judgment of the trial court on demurrer is reversed in so far as the demurrer was sustained to that portion of the answer seeking an apportionment because of a deficiency in the quantity sold. It is affirmed in respect to that portion of the- answer which sought compensation or damages because of misrepresentations as to the improvements on the property.
The fourth headnote does not require elaboration.
Judgment affirmed in part and reversed in part.