176 Ga. 343 | Ga. | 1933
The petition, brought by Mattie Woodall, against James Williams, was amended three times. Finally, on motion of the defendant “that the petition and amendments thereto do not set out a cause of action,” the petition was dismissed. Error is assigned upon that judgment. As finally amended, the petition alleged that on November 10, 1930, the defendant, James Williams, was in possession of and cultivating described real estate and claimed an interest therein by virtue of a tax deed against M. W. Woodall, covering state and county taxes for the year 1923, “made "to W. C. Foster and subsequently acquired under quitclaim deed by . . James Williams from W. C. Foster et al.;” that the claim of ■"Williams was disputed by the petitioner, Mattie Woodall, “who acquired title under year’s support proceedings in Fulton court of ordinary, out of the estate of her deceased husband;” that in order to effect a compromise settlement of their dispute they entered into an agreement by which Williams agreed “to purchase said described real estate” for a consideration of $235, four dollars of which was ■paid in cash, the balance to be paid, $100 Dec. 10, 1930, and nine monthly installments of $15 each, with interest at seven per cent. The contract contained the following: “The said Mattie Woodall,
1. The petition set out a cause of action for specific performance, as against the motion to dismiss. It was not in any sense an action for land, or an ejectment suit. On the contrary the petitioner executed in escrow a deed conveying the land to the defendant upon payment of the price alleged to be due under the contract. There
2. The petition prays for damages in lieu of specific performance, if for any reason specific performance is impossible or inexpedient. In Tippins v. Phillips, 123 Ga. 415, 416 (51 S. E. 410), it was said: “In order to recover damages in lieu of specific performance, it is essential that a case for specific performance be made out.” That position is untenable, as may be easily demonstrated.
This court has dealt with the question a number of times. In Lane v. Lodge, 139 Ga. 93 (3 a) (76 S. E. 874), it was held “In an action for specific performance, damages for the breach of the contract may be recovered where for any cause specific performance is impossible.” The same ruling was made in Central Georgia Power Co. v. Butts County, 139 Ga. 490 (77 S. E. 380), Greer v. Pope, 140 Ga. 743 (5), 749 (79 S. E. 846), Boney v. Cheshire, 147 Ga. 30 (92 S. E. 636), and Grant-Jeter Co. v. Americm Real Estate Co., 159 Ga. 80 (3) (125 S. E. 73). All of the decisions here cited, as to the recovery of damages where specific performance could not be had, were unanimous decisions of this court, and therefore binding. In Rosenkrantz v. Chattahoochee Brick Co., 147 Ga. 730 (95 S. E. 225), the majority of the court held: “The petition, properly construed, in the opinion of the majority of the court, is one for specific performance of the contract only.” For the reasons stated, the petition set out a cause of action for recovery of damages in lieu of specific performance, if for any reason the latter is impossible. Judgment reversed.