38 S.E.2d 425 | Ga. | 1946
The petition in the present case is one seeking the specific performance of a contract to sell land; and the allegations of the petition being insufficient to show a valid and unconditional tender of the purchase money, the court did not err in sustaining a general demurrer to the petition.
The present case is distinguishable from Goodman v.Spurlin,
2. "Where the covenant gives the lessee the option to purchase at any time for a specified sum, he may exercise the option at any time within the term of the lease." 3 Thompson on Real Property, 490, § 1329. In the absence of a specified date for exercising the right of purchase, the option will be construed as operative for the term of the lease or renewal thereof, and such option would not be void as containing no time limit within which the right to purchase might be exercised. A lease agreement for a specified term of two years, containing in addition provisions for the purchase of the property, which lease and option agreement were renewed, it is contended, by action of the parties thereto for a like term of two years, would not be violative of the rule against perpetuities. In Turner v. Peacock,
3. "In a suit by the purchaser for specific performance of a contract for the sale of land, it should be made to appear that before institution of the action the plaintiff had paid or tendered the purchase-money according to the contract, or that such had been waived by the defendant." Roberts v. Mayer,
Clearly the allegations in the present case are insufficient to show a valid and unconditional tender. Accordingly, the trial court did not err in sustaining the general demurrer. And this is true although the court may, as stated by counsel, have sustained the demurrer on another theory. Coker v. Atlanta,
Judgment affirmed. All the Justices concur. *822