139 Ga. 29 | Ga. | 1912
William K. Miller filed his petition alleging as follows: Thomas E. Watson owned a tract of land containing 196 acres. On January 27, 1908, he contracted to sell it to Miller for $4,312, of which sum Miller paid $500 in cash and gave three notes for $1,270.66 each, payable respectively at ©ne, two, and
No special demurrer was filed; and therefore it is not up for decision whether the petition is multifarious, or open to any objection which might be raised by special demurrer. The case was dismissed on general demurrer filed by Thomas E. Watson, 'raising the point that the facts alleged do not constitute a cause of action. The petition is projected on the theory that the plaintiff is entitled to specific performance of his bond for title from Thomas E. • Watson, upon payment of the balance of the purchase-money, and, as ancillary to such relief, that the purported voluntary deed from Watson to his granddaughter should be canceled. ■ The first step in the solution of the case is the determination of the plaintiff’s right to have specific performance of his contract of purchase as expressed in his bond for titles, under the allegations of the petition. While it is a general rule that the right to specific performance is in the sound discretion of a court of equity, yet it is the rule in this State that such power is to be exercised by the jury under the evidence and the charge of .the court. Franklin v. Newsom, 53 Ga. 580. The bond for titles contains a clear and definite contract to convey land on the payment of the stipulated purchase-
The allegation .is that the vendor’s deed to his infant granddaughter is void because it was never delivered. Courts of equity have jurisdiction to cancel a deed which, though not enforced at the time, either casts a cloud over the plaintiff’s title or otherwise subjects him to future liability, and the cancellation of which is necessary to his complete protection. Civil Code, § 5465. Equity, having taken jurisdiction for the purpose of decreeing specific performance, will decree full and perfect relief touching the subject-matter. Fulgham v. Pate, 77 Ga. 454. We therefore reach the conclusion that as against a general demurrer the plaintiff alleged a cause of action, and that it was error to dismiss the petition.
Judgment reversed.