9 Ga. App. 68 | Ga. Ct. App. | 1911
This case was tried in the lower court upon an agreed statement of facts. Edwin Fulcher sold to one Wimberly a tract of land, which was to be paid for in partial payments, covering a period of several years. The notes represented the purchase price, each maturing on the 1st of November. As a part of the same contract Wimberly expressly agreed that if he failed to pay the first note, which was due November 1, 1909, or any subsequent note as it might mature, he would pay rent “for that current year” for the use of the lands; the rent to be 1,600 pounds of middling lint cotton. This would have authorized Fulcher to rescind the contract of sale for default, and to foreclose his lien as landlord, at any time after November 1, 1909. Under the contract he could not enforce any lien until there was a rescission, in the event of Wimberly’s default in the payment of the notes; and each of the notes matured on November 1. Perhaps the possibility of what has occurred was foreseen by the contracting parties, for the contract between Fulcher and Wimberly expressly provides that '“immediately, when either'of said notes may become past due and unpaid, the relation of landlord and tenant between said parties shall arise, and the landlord’s lien for rent shall'come into being, with full right on the part of Edwin Fulcher to distrain for rent as fully as if a contract of rental had been made at the beginning of said year.” When the contract was executed on November 11, 1908, the plaintiff .in error, Wilkins, was present and participated to such an extent in framing its stipulations that he suggested that the rent required to be paid in ease there was default in the payment of the purchase-money notes should be 1,600 pounds of lint cotton, instead of 2,000 pounds, which Fulcher had first required. Thereafter Wilkins made ■advances to Wimberly to aid in making his crop, which were secured by a mortgage on the crop. This mortgage was foreclosed ■on October 28, 1909, and the fund in dispute is the result of the sale under the foreclosure. Fulcher claims that the fund is subject to his superior lien as landlord. The question .in the case is: Which has the superior right to claim the fund, Wilkins’ mortgage,
It is not denied that the contract entered into between Wimberly and Fulcher regarding the purchase of the land,-but which provided that, in the event Wimberly defaulted in the payment of any of his notes at maturity, the sale should be abrogated and Wimberly should pay rent at the rate of 1,600 pounds of lint cotton, is a valid contract. There is no reason why such a contract may not legally he made. It is insisted, however, that even if, under the contract, Fulcher would be entitled to foreclose a landlord’s lien upon the crop on the rescission of the conditional sale, still the lien of Wilkins’ mortgage fi. fa., foreclosed October 28, is superior to Fulcher’s lien as a landlord, which was not foreclosed until November 2; in other words, that the lien of the landlord for rent should only date from the levy of the distress warrant, because up to November 1 Wimberly was a purchaser. We are of the opinion that it was in the power of the landowner, in parting with the possession of his land, to provide that if the purchase price was not paid as stipulated, the contract of sale should be rescinded and the relation of landlord and tenant arise as a substitute, and that he could also refuse to part with the possession, except on condition that the rescission should have a retroactive effect.
Of course, in the event of a rescission, Fulcher would have to repay Wimberly any payments made by the latter upon the land (or apply them upon the stipulated rent agreed to be paid by Wimberly), and would also have to pay him for any improvements put upon the land by him, because restitution and rescission must go together. But a rescission would relate back, as provided by the contract, and no one could complain, unless he was injured by an act of the landowner mala fide, because the landowner would have the right to deal with and dispose of his land as he pleased, and neither his right to his land and the crop raised thereon, nor his right to dispose of the land as he saw proper, could be affected by the rights of intervening parties, even if they did not have notice of the nature and contents of the contract by which the land was disposed of. Tf by fraud or misrepresentation Fulcher had induced Wilkins to sell to Wimberly, or to do any act to his injury, of course the case would be different; but it appears that Wilkins knew the true state
The headnotes sufficiently state the legal incidents resulting from the relationships created by the contracts in evidence, and from the mortgagee’s connection with the transaction; and for this reason further elaboration or discussion of the facts is unnecessary.
Judgment affirmed.
