180 Ga. 627 | Ga. | 1935
This was an equitable suit brought by Inez Terry against Nellie D. Kean and N. 0. White, for specific performance of an alleged contract of sale by Miss Kean to the plaintiff of certain described real estate in Fulton County, Georgia, and for cancellation of a deed executed thereafter by Miss Kean to N. C. White, conveying the same property. Petitioner alleges that in December, 1932, her husband entered into a contract with Miss Kean for rental of this real estate for the year 1933, at the rental price of one hundred and twenty-five dollars for that year; that under the terms of this contract he went into possession of the premises and cultivated and harvested a crop thereon during the year 1933; that early in October, 1933, while the .plaintiff and her husband were residing on the premises, the plaintiff entered into a contract made verbally with one Green, who she alleges was an agent of the defendant Miss Kean, duly authorized to sell her real estate, whereby the plaintiff agreed to purchase the property in question, the purchase to be consummated when, in accordance with the agreement made, she should obtain a loan from the Federal Land Bank of Columbia, “so the purchase-price could be paid as soon as the loan was obtained by her;” that under this contract to purchase
Upon the hearing the court sustained a general demurrer to this petition, and the plaintiff excepted.
The court did not err in sustaining the demurrer. As controlling in the case the court cites the case of Byrd v. Piha, 165 Ga. 397 (supra). Other decisions might have been relied upon as requiring the dismissal of the petition. In the case referred to it was said: “Where the law prescribes that the act can be executed by the principal only by writing, then the act creating the agency must be executed with the same formality; that is, the agency must be created in writing.” And the Code itself (§ 4-105) prescribes, “The act creating the agency shall be executed with the same formality (and need have no more) as the law prescribes for
The plaintiff contends that she entered into possession of the property under the terms of the contract with the alleged agent of the defendant; but it also appears from the petition that the agent had rented the premises for the year to Love Terry, the husband of the plaintiff, and that she went in there with her husband, and apparently was in there under the rights which he had as a tenant to hold the place. The possession of the premises, under the allegations of the petition, was the possession of the husband; and even if plaintiff made valuable improvements upon the place, this was not notice that the plaintiff was making improvements, but the making of such improvements would be ascribed to the husband, who was the rightful occupant of the premises. In view of what was ruled in Byrd v. Piha, supra, the court did not err in sustaining the general demurrer.
Judgment affirmed.