143 Ga. 339 | Ga. | 1915
A mother and three children were the common owners of a lot of land. One of the cotenants died, leaving a widow as his sole heir at law, and the other cotenants instituted a statutory partition proceeding for the purpose of dividing the land equally between the four claimants. The widow of the deceased cotenant filed objections to the partition, denying that the applicants had any interest in the land sought to be partitioned. She further alleged, that her deceased husband originally owned a one-fourth interest and the applicants owned a three-fourths interest in the land; “that something over three years ago her husband made a trade for the purchase of the interest of the other parties, and after said trade, which was in parol, he built a house on said land and fenced something over twenty acres of the same. Defendant says that her deceased husband having entered on said land as a purchaser and having made valuable improvements’on the same under said parol contract, the same was binding on the other parties in said case. Wherefore defendant says that plaintiffs have no right to ask for a partition of said land.” On the trial of the case the defendant testified, that when the land was purchased by her deceased husband it was in woods; that he cleared twenty or twenty-five acres, built a house thereon, and put up considerable fencing, and was residing on the land at the time of his death; and that the plaintiffs had made frequent visits to her husband and had made no
The applicants verbally sold their interest in the land to the deceased cotenant, delivering possession to the vendee. Upon the latter’s failure to pay the purchase-money at maturity they had the right to sue and recover the land. An action to recover the land by the vendors, in default of the payment of purchase-money, is an exercise of the reserved right to rescind. The vendee or his heirs at law could resist the exercise of this right by a tender or payment of the purchase-money, or by setting up such matters as equity would require the plaintiffs to recognize before allowing a rescission. If the vendee had erected substantial improvements on the land, the vendors would not be equitably entitled to a rescission of
The partition application], wherein the several cotenants were seeking to have assigned to them in severalty different portions o£ ‘the land in possession of the widow of the deceased uotenant, was the substantial equivalent of an action by a vendor to recover the land. In the instant case there is no dispute that the land originally belonged in common to the applicants and the husband of the defendant. Nor does there seem to be any dispute that the applicants verbally sold their interest to the deceased cotenant. The applicants’ testimony was to the effect that time was of the essence of the purchase, and that upon failure of the vendee to pay any of the purchase-money within the time limited by the contract the vendee forfeited all rights to his improvements. The defendant seems to have rested her case entirely upon the proposition of the parol sale and valuable improvements thereunder, without alleging or proving the amount of the original purchase-money, and whether any part of the same had been paid or tendered. Whatever equities may have accrued to the deceased cotenant from the erection of valuable improvements, he was not invested with the title under a parol sale of the land with all the purchase-money unpaid. To allow the verdict to stand would be to defeat the applicants of their right to purchase-money, even if there was no provision in the contract for forfeiture on failure to pay the principal within a given time. The verdict is therefore without evidence to sustain it.
Judgment reversed.