Roberts v. Wilson

153 Ga. 538 | Ga. | 1922

Beck, P. J.

(After stating the foregoing facts.) The motion for a new trial contains the general grounds that the verdict was contrary to the evidence and without evidence-to’support it; and the first ground of the amendment to the motion assigns error upon the following charge of the court: " Now, after taking the facts as you may find them, if you should find from the testimony or facts of this case that in making a sale of this land, this transaction that is alleged to have been made in this case, that the defendants, or their agents representing them) sold to F. A. Wilson Sr., the plaintiff, the whole of lot No. 223, together with other lands, that in making that sale they were selling lot 223 and all the lands embodied in that lot, and that prior to that sale there had been sold off a portion of lot 223, - then the plaintiff in this case, after ascertaining that fact, had a right to rescind this contract; and if you believe that to be the truth of the case, it would be your duty to return a verdict the result of which would be to rescind and relieve him of the contract.” Plaintiffs in error contend that this charge is erroneous, and assign error thereon: (a) Because the quantity of land lost by the purchaser, and the value thereof, was so small in comparison with the size and agreed value of the entire tract sold, that the plaintiff was not entitled in law to a rescission of the contract of sale. (b) Because it .appeared from the undisputed evidence that the defendants had title to and actually offered to convej'' to the plaintiff, upon the payment of his purchase-money notes, all of the land except 20.8 acres, and inasmuch as that would have been a substantial compliance with the contract of sale, the plaintiff was not in law entitled to reject the offer and have a rescission of the contract, (c) Because the instruction complained of required at the hands of the jury a verdict in favor-of the plaintiff, irrespective of the quantity of land lost, and notwithstanding it was insignificant as compared with the size of the tract purchased and the relative value was exceedingly small, (d) Because there was not a sufficient variance between the quantity the plaintiff claimed to have purchased and the quantity the defendants offered to convey to justify a rescission of the contract of sale, (e) Because said charge withdrew from the jury the question whether or not the defendants had offered substantial compliance with the contract of sale. (/) Because defendants did not, by the terms of the bond for title and the description contained therein, agree to sell or convey to the plaintiff any part of lot No. .223 in the 14th district of Lee County, Georgia, or of the other lots or tracts mentioned therein which was not owned and possessed by the late A. J. Boberts at the time of his death, and the 20.8 acres south of Chokee Creek, which the plaintiff claims to have lost, were not included in the contract of sale.

This charge is not error for any of the reasons assigned. It is true that in the bond for title the tract of land sold is referred to as the Bed Hill Place, but it is also a binding obligation upon the plaintiffs in error to convey the whole of lot No. 223; the language of the bond for title being “ all the whole of lots of land numbers two hundred and twenty-three (223) and two hundred and twenty-four (224), each containing 202% acres, more or less, and [certain fractional lots described], containing in the aggregate 431 acres, more or less, known as the Bed Hill Place, which was owned and possessed by the late A. J. Boberts at the time of his death.” If the description of the land sold had described it as “ the Bed Hill Place owned by A. J. Boberts at the time of his death, containing 431 acres, more or less,” and there had been a deficiency in the number of acres not so great as to show fraud, there could have been no rescission, and, if the sale was by the tract, not even an apportionment of price for shortage. The sale here was by the tract, and it was indivisible; certainly as to thé two entire lots that were sold. The contract is to sell the whole of lots 223 and 224. It is true that the further description, “known as the Bed Hill Place,” is added; but this bond for title is not a mere contract for the sale of the Bed Hill Place or a tract of land known as the Bed Hill Place; it is a distinct agreement for the sale of lot 223, among other lots described; and the'description named, “Bed Hill Place,” applies to the entire tract embracing lots 223, 224, and the fractional lots mentioned above. In entering into the contract to purchase, in making the cash payment and giving his promissory notes for the payment of the remainder of the purchase-price, the petitioner had the right to insist that, while he was purchasing the Bed Hill Place, he was purchasing as a part of it two definite tracts of land, one of them being lot No. 223. And where the ancestor of the defendants had, during his lifetime, sold off a part of one of these tracts of land, and his heirs, coming into the inheritance after the death of the prior owner, made a sale of and contracted to convey the whole of lot No. 223, and it transpired after the sale was made that the heirs could not comply with that contract because the ancestor had sold off a part, the purchaser was equitably entitled to a rescission of the contract, if the purchaser at the time of buying did not know of the sale by the ancestor. In section 4121 of the Code it is said: “ The contract of sale may be entire or divisible. If entire, a failure in part voids the whole; if divisible, the voidance is only in proportion and to the extent of the failure. The intention of the parties determines the question of entirety or divisibility.” And section 4122, relating to deficiency in the sale of lands, contains the provision: “If the sale is by the tract or entire body, a deficiency in the quantity sold can not 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 willful 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.” The sale here,-as we have observed above, was by the tract. And ordinarily, in the case of a sale like this, a deficiency in the quantity sold can not be apportioned; the purchaser in such a case can not demand an apportionment unless the deficiency is so gross as to justify the suspicion of willful deception, or mistake amounting to fraud. We do not think that there is any deficiency shown here so gross as to justify an apportionment. And if the sale had been of an entire tract described as the Bed Hill Place, and as containing 431 acres, more or less, though there should have been a deficiency of twenty or even a larger number of acres, this would not necessarily have required either a rescission or an apportionment. But where the contract is for the sale of two lots of land, with boundaries, about which there is no mistake, it is not a question of deficiency in the number of acres, where it is shown that the vendors or their ancestor through whom they derived title had sold off a part of one of the two lots thus definitely described; it is a case of failure in part where the contract of sale is entire. And the contract of sale being entire, a failure in part voids the whole. We are construing, of course, the contract as it stands written; and there is no complaint that if there was shown to be a mistake in drawing the contract, that was not properly submitted to the jury. The charge of the court complained of properly submitted the principles of law announced above as applicable to this case.

Judgment affirmed.

All the Justices concur.