Brown v. Doane

• Citation: 12 S.E. 179,86 Ga. 32
• Parties: BROWN v. DOANE.
• Decision Date: 13 October 1890
• Court: Supreme Court of Georgia

12 S.E. 179

86 Ga. 32

BROWN v. DOANE.

Supreme Court of Georgia

October 13, 1890

Syllabus by the Court.

1. If by a false and fraudulent oral promise, which he intends at the time of making it afterwards to violate, the vendee of two contiguous parcels of land, which he has contracted for by separate and distinct contracts, induces the vendor to convey to him both parcels by one and the same absolute unconditional deed, he paying for one parcel, but not for the other, equity by reason of his fraud will fasten upon him a constructive trust in behalf of the vendor, as to the parcel not paid for, although the two parcels are not described in the deed as several tracts, but both together are treated as one tract.

2. Whether a written undertaking to pay for land, when the vendor produces and puts in the hands of the vendee a complete chain of paper title from the state down to the vendor, imports a duty in the vendor to made efforts to procure such a title to be executed if it does not already exist, is open to explanation by parol evidence, the language of the instrument being ambiguous.

Error from superior court, Fulton county; CLARKE, Judge.

p>Page arnold & Arnold, for plaintiff in error.

E. V Carter, for defendant in error.

BLECKLEY C.J.

Mrs Brown, by warranty deed, absolute in terms, expressing a consideration of $2,400 in hand paid, conveyed to Doane in fee-simple, as one tract containing 60 acres, more or less parts of land lots Nos. 94 and 99 in the fourteenth district of Fulton county. Doane at the same time delivered to her his written obligation reciting that he had purchased her home plantation near Hapeville, to which she had made him a deed and proceeding as follows: "I hereby agree and bind myself to pay to Mrs. Sudie C. Brown the sum of $200, without interest, whenever she produces and places in my hands a good chain of title in fee-simple from plat and grant down and into Mrs. Sudie C. Brown of the five acres of land on land lot number 94 *** which is embraced in said Mrs. Sudie C. Brown's deed to me. This note is not to be transferred to any one, and to be paid only when the conditions for which said note is given are strictly complied with." This sum of $200 added to $2,200 actually paid would be requisite to make up the amount expressed in the deed as the consideration. The parties differing as to the sufficiency of the chain of title which Mrs. Brown afterwards presented to Doane, and he refusing to accept the same, and also refusing to pay the balance of the purchase money or to surrender the five acres of land, she filed her petition in the nature of a bill in equity, to compel him to do one or the other of these things. She alleged in her petition as amended, in substance, that, before and at the time the deed was executed, he promised and agreed that he would restore to her the five acres of land, (of which at the time of the conveyance he had obtained possession as a part of the tract,) in case she could not produce the chain of title described in his obligation. The case coming on for trial, and some of her evidence being introduced, and more offered but excluded, she proposed to still further amend the petition by adding the following in substance: "Petitioner avers that, at the time of and before the deed from herself to Doane was made, he promised and agreed to return the five acres in land lot 94, in case it developed that petitioner could not procure a plat and grant from the state down. On the faith of said agreement to return back the five acres in case it turned out, after a reasonable search, that petitioner had no plat and grant from the state down, petitioner made the deed to said five acres together with the other fifty-five acres, and she would not have made such deed, except on the faith of said agreement. The five acres was not paid for, and has never been. The contract as to the five acres was separate and distinct from the sale of the 55 acres. Petitioner has made every effort to obtain such title, but, as it was not in existence, she was not able to find it. Defendants, though requested, failed to return the land. The promise and failure to return the land constitute a fraud on the part of defendant, whose original design was fraudulent. Said original design was fraudulent. Said original representation was made with intent to induce petitioner to make such absolute conveyance, and with the intention of holding said land after such conveyance was made. Petitioner further avers that the deed and note constitute an ambiguous contract, and that the parol...