94 Ga. 171 | Ga. | 1894
This was an action brought by Willis against Sanderlin in the city court of Macon upon a promissory note for $600.00 The defendant filed a plea of the general issue, and a plea of partial payment, the amount of which was allowed, and a verdict rendered in favor of the plaintiff for the balance. In addition to the defences above mentioned, the defendant, among other things, also pleaded, in substance, as follows: The note-sued upon was given in part payment of the purchase price of a tract of land described in a bond-for titles given by the plaintiff to the defendant cotemporaneously with the execution and delivery of the note, these papers evidencing the contract then entered into between the parties. By this bond the plaintiff bound himself to make, or cause to be made, to the defendant good and sufficient titles to the land when the note should be paid, and the note was given in consideration of this obligation on the part of the plaintiff. Defendant offered to pay the money when the note fell due, and was ready, and has since been ready, to make payment whenever the plaintiff will make or furnish him good and sufficient titles to the land, agreeably to the terms of the bond. At the maturity of the note, the defendant called upon the plaintiff to. make or furnish “said title,” and the plaintiff, in violation of his contract, wholly refused, and has hitherto wholly failed to make “said title.” Defendant has paid to the plaintiff the sum of $558.06 upon the contract, the whole of which is lost to him except the rental of the land, of the value of $150.00.
This plea further alleged that the defendant had hitherto continually offered to return the land to the plaintiff and pay him full value for the use thereof; and contained an offer’to surrender possession and account for the rents received by defendant during the time of his occupation of the premises; and prayed judgment, by
On general demurrer, this plea was stricken, and the’ defendant excepted. We think the court erred in-striking this plea. We recognizethe rule thatthe purchaser of land who enters into possession under a warranty deed or a bond for titles cannot, before eviction, defeat an action for the purchase money, unless there has been fraud on the part of the vendor, or the latter is insolvent, or there is some other ground which would in equity entitle the' purchaser to relief. This rule seems to be well settled by the cases of: McGehee et al. v. Jones, 10 Ga. 127; Watson v. Kemp, 41 Ga. 586; McCauley v. Moses, 43 Ga. 577; Smith v. Hudson, 45 Ga. 208; Booth v. Saffold, 46 Ga. 278, and numerous other decisions of this court. According to these cases, if the purchaser is in possession under a deed with covenant of warranty, he must resort to his covenant; if under a bond for titles, he must resort to'the bond. The case before us, however, differs from all of those above cited. While it is impossible to know with certainty whether the defendant meant to allege that the plaintiff would not make him any title at all, or to allege only that the plaintiff refused to make the “ good and sufficient title ” stipulated for in the bond, he does distinctly allege that there was a breach of the bond and that he thereby sustained damage. In none of the cases above cited did the party seeking to avoid payment of his purchase money note make such allegations as these. In all of those cases •the purchaser actually obtained what he had bargained for, and it was simply held that he must stand upon his contract as made. In the present case, the plea alleges that the plaintiff contracted by his bond to make the defendant titles; refused to comply with the bond, and thus broke the contract. It is true the plea does not set cut in full the terms of the bond, or make distinct and
Whether or not the city court of Macon- has jurisdiction to administer equitable relief, there can be no question of its power to afford the defendant the relief set up by this plea, if he succeeds in establishing it by satisfactory evidence.
Judgment reversed.