156 Ga. 386 | Ga. | 1923
Lead Opinion
(After stating the foregoing facts.) In this case Roberts bought land from Groover and Strickland, taking the bond for title which is set forth in the statement of facts, and paying therefor the sum of $5,000 in cash, and giving two notes, for $5,000 and one for $5,220, for the unpaid portion of the purchase-price. Groover and Strickland brought suit in the city court of Quitman for $3,000, the unpaid balance on the first note; and Roberts filed the pending equitable petition asking that the contract of purchase be rescinded, and that the suit in the city court be in the meantime enjoined. Upon an interlocutory hearing held on September 24, 1921, the judge refused the injunction prayed for. The case was brought to this court upon this ruling; and it was held: “ The evidence submitted at the interlocutory hearing being conflicting upon the controlling issue, the judgment of the court at such hearing, denying the injunction, will not be disturbed here.” Roberts v. Strickland, 153 Ga. 529 (112 S. E. 560). In that case Groover and Strickland were “restrained and enjoined from selling, alienating, hypothecating, or otherwise disposing of the notes (other than the one sued on in the city court of Quitman, Georgia) heretofore made to them by the plaintiff, W. W. Roberts Jr., until the further order of this court; the restraining order heretofore entered relative to the suit in the city court of Quitman, Ga:, by above defendants against above plaintiff, is hereby vacated, and said defendants are permitted to proceed with the prosecution of that suit in the city court of Quitman, Georgia, irrespective of the existence of this litigation herein.” TJppn the return of the remittitur the case was called for trial;
The amendment referred to was filed on November 8, 1932, and alleged: that the bond for title contained no boundary for six sevenths of the area on the east side of the acreage sought to be purchased by the plaintiff from the defendants; that, although the bond for title attempted to describe an eastern boundary of the acreage in dispute, in point of fact the said eastern boundary referred entirely and only to the 75.35 acres of lot 435 as specified in the bond, and did not refer or attempt to refer to any eastern boundary for the much larger acreage sought to be conveyed as part of land lot number 436; that there are only 420.47 acres in the west half of lot number 436, which, in accordance with the bond for title, is bounded on the west by J. R. Richardson; that the bond referred to the west part of lot 436, and the defendants were not in a position to make title to 454.25 acres of lot-43 6; that in December, 1921,. plaintiff returned to defendants their bond for title, with signed authority to the clerk of the superior court of Brooks county to cancel the same of record, and returned to them the map which they handed him when they gave him the bond for title; that said papers had been received by the defendants, and none of them had been returned to the plaintiff; and that the delivery of said papers constituted a complete cancellation of the attempted trade between the parties.
The ultimate question in this case is whether Roberts is entitled to a rescission of the contract of purchase and sale. It must be noted that the trial judge based his judgment " particularly" (italics ours) upon the ground that the' sale was by the tract and not by the acre; and inasmuch as the right to rescind where the sale of land is made by the tract is affected by so many considerations which have no application where the sale is by the acre, the decision in this case may, in a large sense, be said to hinge and turn upon whether the purchase of the lands in the present instance was by the tract or by the acre. We think the learned trial judge erred in dismissing the petition. And since it appears that the decision was based especially upon the ground that the court adjudged the sale of the land to be by the tract instead of by the
In dealing with the subject of deficiencies in the sale of land it is declared in the Civil Code (1910), § 4122: “In a sale of lands, if the purchase is per acre, a deficiency in the number of acres may be .apportioned in the price. If the sale is by the tract or entire body, a deficiency-in the quantity sold cannot be apportioned. If the quantity is specified as ‘ more or less,’ this qualification will cover any deficiency not so gross as to justify the suspicion of wilful deception, or mistake amounting to fraud; in this event the deficiency is apportionable; the purchaser may demand a rescission of the sale or an apportionment of the price according to relative value.” Section 4124 is as follows: “ If the purchaser loses part of the land from defect of title, he may claim either a rescission of the entire contract, or a reduction of the price according to the relative value of the land so lost.” It will thus be seen that where the sale is by the tract, there can be no apportionment of the deficiency in land, unless the deficiency be so gross as to justify the suspicion of wilful deception or a mistake amounting to fraud. But if the sale of land be by the acre, the purchaser may demand either an apportionment of the price according to the relative value, or a rescission of the entire contract of - sale. The plaintiff in this case asks a rescission and return and cancellation of his notes, and a judgment against the defendants 'for the sum of $7,000 which he alleges he had paid them. In Parks v. Norman, 108 Ga. 373-374 (33 S. E. 1005), where, as in the present case, “The main and controlling question in the case” was “whether Parks purchased by the tract or by the acre,” Chief Justice Simmons, delivering the opinion of the court, held that where the quantity of the land was of the essence of the contract the sale would be one by the acre. “ If the quantity of the land was of the essence of the contract and the deed described it in proper terms, Parks ought to have recovered for the deficiency. If, however, the land had been sold and the description thereof had been by metes and bounds or by monuments or any other marks capable of
■ In the cases of Rawlings v. Cohen, 143 Ga. 726 (85 S. E. 851), and Kendall v. Wells, 126 Ga. 343 (55 S. E. 41), upon which the defendants rely, it was properly held that the sales then under consideration were by the tract; but there is no similarity between the description in either of these cases and the ease at bar. The language of the conveyance in each of these cases showed that the quantity of the land was not of the essence of the contract. In the Rawlings case the deed described the land conveyed as follows: “ all that tract or parcel of land lying, being, and situated in the State and County aforesaid, and in the 136th Dist. G. M., and containing two hundred and fifty-nine (259) acres, more or less,
Rationally construed, an instance where the first expression of the contract is a statement that a quantity of land so definitely fixed as to require a measurement down to one fourth of a acre, and which is not otherwise described than by the general statement that it is bounded by lands of certain named persons, must be said to be sold bjr the acre. Some description is necessary in order to enable a surveyor to find the lines by which the fixed quantity to be sold can be identified and surve3ed, or else the attempted conveyance would be void for want of description; and therefore the mere statement that the land is bounded by lands of certain persons should not defeat the stipulation of a contract like this which called, not for a tract containing so much land, more or less, but for 454.25 acres from a designated land lot and 75.25 acres from another designated land lot, aggregating the definite sum of five hundred and twenty-nine and 50-100 (529.50) acres. To hold otherwise would be to declare that a contract for the sale of land by the acre could not be made at all;'for in the Parks case, supra, this court held that to purchase land b3f the acre the deed must “ describe it in proper terms.” The fact that the land is also described as being known as the “Dekle Place,” which, as the naming of the coterminous owners, is only part of the proper description referred to in the Parks case, does not, in our opinion, defeat the natural inference arising from the precise and exact statement of the number of acres and fractions of acres set forth in the bond for title (see Roberts v. Wilson, 153 Ga. 538, 541, 112 S. E. 451) and the unusual and apparently intentional omission of any reference to a tract or tracts of land, as well as of the very significant phrase “more or less,” which is employed almost universally for the very purpose of covering any variation in the quantity of land sought to be conveyed. As said in 2 Devlin on Deeds (2d ed.), § 1044: “In the description of land it is usual,
As to the use of the words “ more or less,” Judge Lumpkin in Kendall v. Wells, supra, said: “In that part of the code section quoted which relates to the subject of a deed stating the quantity as £ more or less,’ nothing is expressly said as to a deed where the description of the tract of land mentions a certain number of acres but does not add the words £ more or less.’ Clearly it was not intended that the addition of those words would give a superior right of apportionment for a deficiency, where it would not exist without them. To so hold would reduce this provision of the section to an absurdity. . . This section never meant to declare that the right of a purchaser to apportion for a deficiency is in inverse ratio to the definiteness of the description in his deed. One of two things must be the case: either that the sale of land by the tract, containing as a part of the 'description a statement of the number of acres, stands on the same basis, whether or not the words £ more or less’ be added; or that it has a better standing without those words. It certainly could have no worse.” The fact that in the bond for title here involved the statement of quantity comes first is a circumstance of no small import; for almost invariably, in fact in all of the adjudications which I have examined, the number
Judgment
Dissenting Opinion
dissenting. The land sold in this case is thus described in the bond for title: “all the-following described land, to wit: 454.25 acres o'f lot No. 436 and IS.25 acres of lot 435, all in the 12th land district of Brooks County, Georgia, being bound on the north by the Quitman and Grooverville public road, east by lands of Tom Harrell and B. R. Strickland, south by original lot line of lot No. 436, and west by. J. R. Richardson. A plat of said land, made by Zeno Hutchinson, county surveyor, on’August 14, 1919, will be attached to the deed when same is executed by obligors to obligee. The above-described land is known as the Dekle place, and is the place where H. E. Dekle resided for years.”
In my opinion the sale of the land was by the tract. Strong emphasis as laid in the opinion of the majority upon the fact that the number of acres sold is stated before the description by boundaries is given. The relative positions of the different elements of the description may sometimes be significant, but can not be controlling unless there is something else in the case to give then! that importance. The contract as set forth in the bond for title is to convey “all the following described land, to wit: 454.25 acres,” etc. The meaning of that is that the obligor binds himself to convey a tract of land containing 454 and a fraction acres. The boundaries of the lot on four sides are given, and then following that is a statement that a plat of the land, made by a certain surveyor, will be attached, etc.; and then the land is further described as the land which “is known as the Dekle place, and is the place where H. E. Dekle resided for years.” Where the name of the tract of land sold is stated, it being capable of identification as the place on which a certain person lived, and the boundaries on the north, east, south, and west are also given, I do not think that the mere fact that this was preceded by the statement of the number of acres contained shows, as a matter of law, that the place was sold by the acre. The fact that the number of acres, down to a fraction of an acre, is stated, is pointed out by the writer of the