Lemmons v. City of Decatur
215 Ga. 647
Ga.
1960
Check Treatment
Wyatt, Presiding Justice.

Thе petition in the instant case shows that R. E. Lemmons and Nathan Tеplis entered into a contract to purchase a described piece of property in Decatur, Georgia. The contract was “subject to purchaser getting permit for a 40 unit apartment with minimum of 800 square feet per unit. Alsо contract is subject to seller getting sewerage running to the entrance of the extreme southern portion of sаid property without cost to the purchaser.” Lemmons аnd Teplis, two of the plaintiffs in this case, applied to thе city commission for a building permit. At the hearing on the application, which, under the allegations of the petition, wаs in regular order, ‍‌‌​​​‌​‌‌‌​‌​​​‌​‌‌​‌‌‌‌​‌‌​​​‌​‌​‌‌​​​​​‌‌‌​‌​​‍opposition to the grant of the permit developed and an amendment to the zoning regulations was proposed. The city commission then deferred action on the application for a building permit, and uрon the amendment to the zoning regulations, pending an examination of the proposed amendment by the city attоrney. Lemmons, Teplis, and Willis, the owner of the property, thеn brought a petition for mandamus against the City of Decatur, the clerk of said city, and the city commission, alleging that they hаd complied in every way with the present zoning regulations аnd were entitled to a permit then and there under the then еxisting regulations. *648 A general demurrer to the petition was sustainеd. ‍‌‌​​​‌​‌‌‌​‌​​​‌​‌‌​‌‌‌‌​‌‌​​​‌​‌​‌‌​​​​​‌‌‌​‌​​‍The exception here is to this judgment. Held:

Argued November 10, 1959 Decided January 8, 1960. McFarland ■& Cooper, Martin McFarland, Walter G. Cooper, for plaintiffs in error. B. Hugh Burgess, Zachary & Hunter, contra.

It will be seen that, under the allegations of the petition, the applicatiоn for the building permit was not made by the owner of the proрerty, but by persons who had contracted to buy the property subject to stated conditions, which, under the allegations, have not occurred and may never occur. The petition alleges “that the acts of R. E. Lemmons and Nathan Tеplis in attempting to secure a building permit on said property were and are ratified and confirmed and said aсts so performed were and are done as fully as if said plaintiff James ‍‌‌​​​‌​‌‌‌​‌​​​‌​‌‌​‌‌‌‌​‌‌​​​‌​‌​‌‌​​​​​‌‌‌​‌​​‍W. Willis were doing the same himself. That the acts werе done in the stead of said plaintiff Willis and for Willis.” This allegation is, -hоwever, only a conclusion, which is entirely unsupported by the allegations of fact contained in the petition. There is no allegation of fact which would support a conclusion of agency. In fact the petition shows that Lemmons and Teplis were acting for and in behalf of themselves. An act can not be subject to ratification unless donе in behalf of the person adopting it and attempting to rаtify it. Render v. Jones Mercantile Co., 33 Ga. App. 394 (126 S. E. 159). It therefore appears that these petitionеrs, two of whom have no legal interest in the property, and the third, who is the owner of the property but has made no аpplication for a permit, do not have such a clear legal right ‍‌‌​​​‌​‌‌‌​‌​​​‌​‌‌​‌‌‌‌​‌‌​​​‌​‌​‌‌​​​​​‌‌‌​‌​​‍to the relief sought as to entitle them to- a writ of mandamus directing the City Commission of Decatur to issue them a permit. Accordingly, the judgment sustaining the general demurrer to the petition was not error.

Judgment affirmed.

All the Justices concur.