171 Ga. 771 | Ga. | 1931
LaRowe, the owner of a tract of land in Fulton County, subdivided it and sold two parcels at auction, on August 23, 1928, to McGee. The purchaser paid one fourth of the purchase-price and signed an agreement to pay the balance in three equal annual installments. At the time of the sale announcement was made that all papers necessary to complete the transaction would be prepared by an attorney named, and the purchaser was directed to go to the office of this attorney for the purpose of getting his deeds and completing the transaction. LaRowe executed and left with that attorney warranty deeds conveying the two parcels of land to McGee; and the attorney prepared notes covering the deferred payments, with deeds securing the same. McGee never called at the office of this attorney, but, after waiting several weeks, employed an attorney who wrote to the auctioneers and to LaRowe directly, demanding the return of the cash' payments made by McGee, stating that he had endeavored to take possession of the property and found a man named McDonald hauling sand from the pit thereon; that McDonald claimed to hold a lease on the sand-pit; and therefore that McGee declined to close his trade. LaRowe instituted against McGee two suits seeking specific performance of the contracts of sale. They were consolidated, and the defendant pleaded as to both that McDonald held a lease covering the sand-bed on the property; that for this reason he refused to carry out the trade; and he prayed for judgment against plaintiff for the amount of the cash payments. Dpon the trial the alleged lease was not introduced in evidence. During the trial a witness for the defendant testified that he held a lease on the sand-pit during the year 1930, and that the lease was signed by D. W. DeVore. The case having been submitted to a jury, verdict for the amount of the cash payments plus interest was returned in favor of the defendant. Motion for new trial filed by plaintiff having been overruled, he excepted.'
The sole special ground for a new trial complains that the court instructed the jury as follows: “One of these contentions is, gentlemen, that the plaintiff leased a portion of the particular land involved in this case or this cause of action to a third person for the year 1930, the present year, and surrendered possession thereof to this third person, and therefore is unable at this time to deliver possession to the defendant in this case, in the event the .jury should
Sand, in a general sense, is a mineral. 18 Ruling Case Law, 1093, § 3. The Civil Code (1910)’, § 3617, provides: “Realty or real estate includes all'lands and the buildings thereon, and all things permanently attached to either, or any interest therein or issuing out of or dependent thereon. The right of the owner of land extends downward and upward indefinitely.” Accordingly, it has frequently been held that trees growing on land constitute a part of the realty, as provided by that code section. Moore v. Vickers, 126 Ga. 42 (54 S. E. 814). It has also been held that “manure made in the usual course of husbandry on a farm is so attached to and connected with the realty that, in the absence of an express stipulation to the contrary, it becomes appurtenant to and is treated as a part of the realty.” Brigham v. Overstreet, 128 Ga. 447, 450 (57 S. E. 484, 10 L. R. A. (N. S.) 452, 11 Ann. Cas. 75). Also that a rail-fence is a part of the realty. Sand, as mentioned in this case, does not necessarily fall under the ruling in Graham v. West, 126 Ga. 624 (55 S. E. 931). Bor a learned discussion as to what is to be considered as a part of the land, see Bagley v. Columbus So. Ry. Co., 98 Ga. 626, 631 (25 S. E. 638, 58 Am. St. R. 335). If sand is not a part of the realty, then to recover it a possessory warrant might issue from a justicejs court. If for sand, why not for
The property was sold to McGee for $5302.25, one fourth of which was paid down by him. McGee swore that he bqught the land for a “sand-pit.” .The facts demand a contrary finding, and especially since no such theory was made known to the vendor. The deed from LaEowe to McGee, conveying the land in question, included the sand on the land, and all of the sand. Oral testimony to the effect that a. third person claimed to have such a lease would avail nothing, unless the contract in writing w;ere shown in evidence; and even if such a written contract is produced, if it is not signed by the owner of the land, it would be ineffective unless^he authority of the agent who signed for the owner, is. evidenced in writing. Brandon v. Pritchett, 126 Ga. 286 (55 S. E. 241, 7 Ann. Cas. 1093).
For the reasons above stated the judgment refusing a new trial must be reversed. But it may be contended that the judgment should be upheld on the other ground set up by the defendant as a reason why the contract should not be enforced. That reason was that the defendant vendee was so intoxicated, at the time he bid oii the property at auction sale, that he was incapable of making a binding contract. The Civil Code (1910), § 4239, provides: “A drunkard, when actually intoxicated to such an extent as to deprive him of reason, can make no valid contract with any one cognizant of the fact of his condition. If the party contracting was at all instrumental in producing the state of intoxication, the contract is invalid, however partial the intoxication may be.” It is not hinted that the vendor was even remotely instrumental in producing the intoxication. Where a defense of this kind is pleaded to set aside a contract which on its face is regular in every respect, and where there is no evidence tending to show that the vendor had knowledge of the incapacity of the vendee or in any way took advantage of that condition, or that the contract was unfair or in
Bor all of these reasons we think the court erred in refusing a new trial. Judgment reversed.