Wise v. Hall, 32 Ga. App. 663

Wise v. Hall

32 Ga. App. 663 | Ga. Ct. App. | 1924

Stephens, J.

Where notes given for a balance of purchase-money due for land were, in a subsequent transaction, taken up by another person, who made a partial payment upon the purchase price and gave his own notes to the vendor for the balance .due, in lieu of the original notes, and thus established himself as the purchaser of the land in the place of the original purchaser, and where thereafter, in a suit in equity, the original purchaser, who was the maker of the original notes and retained possession of the land, attacked the transaction in which *664the notes were substituted, as being.a fraud upon her, and obtained a favorable adjudication therein, establishing her right as purchaser and decreeing that, upon a payment by her, within sixty days, of the unpaid purchase-money due on the original contract with the vendor, a deed conveying the land should be made and delivered to her, she could not, after a failure to thus avail herself of her right to obtain a deed to the land upon a payment by her within sixty days of the amount decreed, retain possession of the land and defend a suit against her by the holder of the title to the land, for the unpaid amount thus decreed as due by her on the purchase-money, upon the ground of the alleged validity of the transaction by which another person was substituted for her as purchaser of the land, and which in her suit had been attacked and decreed to be invalid as against her. While her failure to avail herself of her right, under the decree, to obtain a deed to the land by a payment of the unpaid purchase-money within the period of sixty days perhaps amounted to a waiver by her of her right to purchase the land, her continued possession of the land estopped her from setting up such a waiver in her favor. She could not retain possession of the land and at the same time refuse to pay for it, and,' since the amount claimed by the holder of the legal title as due by her on the unpaid purchase money had been determined in a suit to which she was a party, she could not dispute either the amount sued for of her liability therefor. A verdict for the plaintiff was properly directed. Judgment affirmed.

Decided September 19, 1924. Jenkins, P. J., and Bell, J., concur. Norman Shattuch, for plaintiff in error. Rosser & Shaw, contra.