Lane v. Latimer

41 Ga. 171 | Ga. | 1870

WARNER, J.

It appears from the record in this case, that on the 30th day of December, 1867, Dane and Latimer executed an agreement in writing, reciting that they had that day agreed to settle the land difficulty between them on the condition therein named, (to-wit:) that said Lane agrees to pay to Latimer $2,125 00 in payment for a tract of land which Mrs. Laurena Tye now resides on; the said Latimer agrees to make the said Lane a good and sufficient title when the suit is decided, now pending between said Latimer and Mrs. Laurena Tye. It also appears, that, on the 14th day of January, 1868, Lane paid Latimer the $2,125 00 for the land, and ■took his receipt therefor. Afterwards, in September, 1869, Lane sued Latimer to recover back the $2,125 00 paid him for the land; alleging that he had refused to make him a title to the land, in accordance with his written agreement. To this action, Latimer filed a special plea, setting forth various grounds' of defence. On the trial, it appears from the evidence in the record, that in May, 1863, Lane purchased the land from Latimer for Mrs. Tye, for the sum *of $2,600 00; gave his note to Latimer for that amount, payable in currency bankable at par in the banks of Savannah or Augusta, which was secured by a mortgage on the land. Latimer conveyed the land, by deed, to Mrs. Tye, as executrix of the estate of Daniel Tye, and to her five children by name. In January, 1867, Latimer sued Lane on the note given for the land. It appears from the evidence in the record, that Mrs. Tye paid Lane for the land in Confederate currency, and that Lane tendered the same currency to Latimer in payment of his note, the same being bankable in Savannah and Augusta at that time, which currency Latimer refused to receive.

Afterwards, it appears the parties agreed to rescind the land trade; Latimer was to take the land back and give up to Lane his noté given therefore, and they referred the only question then in dispute between them, as to the rent of the land and improvements made thereon, to two arbitrators, who made their award on the 2d day of October, 1866, awarding and deciding that the value of the improvements made on the land was $450 00, and that in-the settlement of the trade between the parties, in the re-taking of. the land by Latimer, nothing should be allowed for rent, but the said sum named for improvements. The note of Lane and the mortgage to secure the payment thereof, appears to have remained in the possession of Latimer or his counsel. On the 9th of March, 1868, Latimer filed his bill on the equity side of the Court, against Lane and Mrs. Tye, praying that they might be decreed to execute to him a deed to the land. It appears from the record, that the sale of the land, made by Latimer to Lane, after the reds-ion of the original contract, and after the award of the arbitrators, as to the improvements and rent of the premises, was made on the 30th of December, 1867, and that Lane paid to Latimer the consideration of his last sale of $2,125 00, on the 14th of January, 1868, which was prior to the time of the filing of the bill for specific performance. It also appears from the evidence in the record, that at the time the parties agreed to rescind the original contract, and at the time of the arbitration, and at the time of making the last *contract, Latimer did not know that Lane had conveyed the title to.the land to Mrs. Tye, as the executrix of her deceased husband and to her children, but it is admitted that Lane told Latimer that he had conveyed the land to Mrs. Tye; that upon the discovery of this fact, he dismissed his bill for specific performance, and on the trial of the case in the Court below, claimed that, in consequence of the misrepresentation of Lane, as to the title conveyed to Mrs. Tye, it was such a fraud or mistake on the part of Lane, as would authorize him to rescind the contract, or excuse him for its non-performance. The Court charged the jury in substance, “that if Lane had informed Latimer, whether intentionally or by mistake, that he had made a deed to Mrs. Tye only, to the land, when in fact he had made it to her as executrix and for her children, by reason of which Latimer was prevented from giving possession to Lane, and if he had so informed him, plaintiff could not recover; that this case was controlled by that principle of law, that where one of two innocent persons had to suffer by an act, then the one in fault must bear the loss, and that the legal effect of the contract of the parties as proven, was to discharge the original note of Lane to Latimer, whether it was delivered upon or not.”

This charge of the Court, in view of the facts contained in the record, was error. Inasmuch as Latimer sought to repudiate the contract for the sale of the land to Lane, on the ground of fraud or mistake, he must repudiate it entirely; he cannot treat the contract as a nullity so far only as to excuse himself for its nonperformance, and at the same time claim the legal right to retain the money paid him by Lane for the land under that contract. The contract is binding on both the parties, or it is not binding on either of them. If Lane is not entitled to have the land, under the contract, then Latimer is not entitled to have the money paid him by Lane for the land, under the contract. The legal effect of the recision of the contract between the parties, is to place them in the same position which they originally occupied before there was any recision of any contract in respect to the land. Miller v. Cotton, 5th Georgia Reports, 341; Code, 2809. *That is to say, Lane is entitled to recover the money back, which he paid Latimer for the land, on the 14th January, 1868. And Latimer, on the discovery of the fraud or mistake in the conveyance of the title to the land by Lane to Mrs. Tye and her children, had the right to enforce the payment of his note and mortgage, made and executed by Lane to him for the land, on the 23d day of June, 1863. His right to elect and repudiate the subsequent contracts made on the ground of fraud or mistake, accrued to him on the discovery of the fraud, or mistake, and not before.

Let the judgment of the court below be reversed.