Anderson v. Barron

• Decision Date: 10 March 1952
• Docket Number: No. 17734,17734
• Citation: 208 Ga. 785,69 S.E.2d 874
• Parties: ANDERSON et al. v. BARRON.
• Court: Georgia Supreme Court

Page 874

69 S.E.2d 874

208 Ga. 785

ANDERSON et al. v. BARRON.

No. 17734.

Supreme Court of Georgia.

March 10, 1952.

Syllabus by the Court.

1. The recitals in a private deed are binding only on the parties thereto and their privies, and are not evidence against one not claiming under the deed.

2. A tender of the amount due under the provisions of a contract providing for the redemption of land, when properly made, is the equivalent of performance; and, where payment is refused when legally tendered, such tender satisfies the statutory requirement of payment.

3. Although instructions of the court to the jury may state the law correctly in the abstract, yet, if they are not authorized by the evidence in the case, they are erroneous, and, if it is not apparent that the jury could not have been misled or confused by them, they are cause for a new trial.

4. The law applicable to a case on trial should be given to the jury by the charge and to the extent of covering all substantial issues made by the pleadings and by the evidence, whether requested or not.

5. The general grounds of the motion are not passed on.

On February 17, 1945, for a consideration of $469.50, W. W. Barron Jr. conveyed to J. J. Barron a described lot of land in Jones County, Georgia, containing 202 1/2 acres. By that deed the grantor reserved a right to redeem the conveyed premises at any time within two years from the date of his deed by repaying the purchase money, with interest at the legal rate. His deed was duly recorded March 18, 1946. On April 10, 1946, and for a recited consideration of $10 and other valuable considerations, W. W. Barron Jr. conveyed the same land to Guy L. Anderson and J. Pierce Anderson. That deed recites: 'By virtue of the privilege of redemption within two years from February 17, 1945, this being the date I deeded to said J. J. Barron the above described property, I have this day tendered to J. J. Barron the principal sum of $469.50 and the sum of $38.40 interest, this being the legal rate of interest as contracted for, this sum being tendered to him in U. S. currency and at the same time a quit-claim deed was presented to him to sign conveying the above described property back to me, W. W. Barron Jr., and the said J. J. Barron fails and refuses to convey this property to me according to agreement in the deed I gave him; Now, I am selling and conveying to parties of the second part the above described land, and conveying to them, for a valuable consideration, all right, title, interest, and privilege that I may have by law or equity towards redeeming this property for themselves, their heirs and assigns as against the said J. J. Barron, his heirs and assigns. Party of the first part also tendered to J. J. Barron all taxes paid on said property by him.' As such grantees, the two Andersons brought an equitable suit against J. J. Barron in the Superior Court of Jones County on September 30, 1946, and prayed that he be required to specifically perform his contract with respect to said land and that he be required to convey the subject land to them by quitclaim deed. The allegations of their petition need not be set out here, since they are fully reported in a former appearance of this litigation in Barron v. Anderson, 204 Ga. 7, 48 S.E.2d 846, where it was held that their petition stated a cause of action for specific performance. The defendant, by his answer, denied the allegations of the petition, and by amendment averred that, after the execution and delivery of the deed containing the redemption agreement, W. W. Barron Jr. in consideration of other and further payments of money to him by the defendant, agreed that the provision for redemption would not be insisted upon and that the defendant should and would have complete and absolute title to the land. The case then proceeded to trial and the court directed a verdict for the plaintiffs. The defendant's motion for a new trial was subsequently overruled and in Barron v. Anderson, 205 Ga. 487, 53 S.E.2d 682, this court reversed that judgment, holding that the trial judge erred on the trial in excluding certain evidence which the defendant offered in support of his amendment.

On the trial now under review the evidence, briefly, was as follows: Guy L. Anderson, one of the plaintiffs, in substance testified: W. W. Barron Jr. came to the office of his son, J. Pierce Anderson, and wanted to sell them the land which he had conveyed to J. J. Barron on September 17, 1945. A few days prior to April 10, 1946, he (the witness) went with W. W. Barron Jr. to look at the property and found no one in possession of it--it was 'lying idle' and there was no dwelling or out-house of any kind on it and 'hardly a road that you could get to very well.' He saw that some trees had been recently cut on it and W. W. Barron Jr. told him that he had sold them to a lumber company. He and J. Pierce Anderson agreed to purchase the land from W. W. Barron Jr. but, before taking a deed to it, they with W. W. Barron Jr. went to the home of J. J. Barron, on April 10, 1946, and W. W. Barron Jr. stated to J. J. Barron that he wanted to redeem his land. He furnished the money, and W. W. Barron Jr. offered to pay J. J. Barron the full amount due him according to his deed, both principal and interest. J. J. Barron refused to accept the money when tendered to him by W. W. Barron Jr., and gave no reason for his refusal to accept it, other than saying: 'At the time I let you have this money I was letting you have good hard money and now you want to pay me back with easy money.' After J. J. Barron had refused to accept the money tendered to him by W. W. Barron Jr., he, at the same time, offered to pay J. J. Barron the full amount due him by W. W. Barron Jr. as shown by the latter's deed to him, and J. J. Barron refused to accept it from him when tendered. J. J. Barron did not at that time say or claim that he had acquired the right of W. W. Barron Jr. to redeem the land in question. J. J. Barron did not then say that he had let W. W. Barron Jr. have any other money since the execution of his deed. Later, but on the same day, W. W. Barron Jr. conveyed the land in question to him and J. Pierce Anderson by warranty deed and they paid him $600, assumed the payment of an obligation which their grantor was due Mrs. Gladys Barron, and payment of the amount he was due J. J. Barron under his deed of September 17, 1945. Again, on September 6, 1946, he offered to pay J. J. Barron the full amount due him by W. W. Barron Jr. as shown by the deed of September 17, 1945. At that time he had sufficient money in his hand with which to do so; and J. J. Barron refused to accept it when so tendered.

J. Pierce Anderson, the other plaintiff, in substance testified: W. W. Barron Jr. came to his office just prior to April 10, 1946, and wanted to sell him and his father, Guy L. Anderson, the land which he had on September 17, 1945, conveyed to J. J. Barron. His father examined the land. He and his father agreed to buy the land from W. W. Barron Jr., and they with W. W. Barron Jr. went to the home of J. J. Barron for the purpose of paying him an amount sufficient to redeem the land according to W. W. Barron Jr.'s deed to J. J. Barron, which he had seen of record. They intended to pay him $469.50 principal, $38.35 interest, and $54.20 as tax which J. J. Barron had paid on the property, but his father carried with him to the home of J. J. Barron about $1200. At J. J. Barron's home, his father handed W. W. Barron Jr. a roll of money, and the latter, speaking to J. J. Barron, said: 'I have come to redeem my land.' J. J. Barron got mad, couldn't talk, and W. W. Barron Jr. handed the roll of money back to Guy L. Anderson, who, speaking to J. J. Barron, said: 'Pierce and I are going to buy this land and we are tendering you the money.' J. J. Barron refused to take the money tendered to him by his father. J. J. Barron then stated to him that he wanted to show him something. He got some papers and said: 'Here is what he owes me right here in good hard money, here is what he owes me.' J. J. Barron never at any time said that he had purchased W. W. Barron Jr.'s right of redemption. He and his father later during the same day purchased the land in question from W. W. Barron Jr., took a deed to it from him, and as consideration paid him $600, assumed the payment of an obligation which W. W. Barron Jr. was due Mrs. Gladys Barron, and also assumed payment of the amount due J. J. Barron as shown by W. W. Barron Jr.'s deed to him. He was with his father at Bradley, Georgia, on September 6, 1946, and saw him tender J. J. Barron the amount due him by W. W. Barron Jr. according to his deed. J. J. Barron again got mad and refused to take the money so tendered. This witness, on cross examination, said that he did not intend to pay J. J. Barron any amount of money while at his home on April 10, 1946, unless he signed a quitclaim deed for the land in question.

J. J. Barron, as a witness for himself, in substance testified: W. W. Barron Jr. was his brother. Buy L. Anderson, J. Pierce Anderson, and W. W. Barron Jr. came to his home on April 10, 1946. He had no conversation with J. Pierce Anderson or W. W. Barron Jr. He talked to Guy L. Anderson, who said to him, 'I bought Will's land, here is your money.' Guy L. Anderson at that time had some money in his hand, a roll of money. He said to him, 'Guy, how do you know how much money Will owes me?' Guy L. Anderson said to him, 'What is on record and that is all I will pay.' He tried to show Guy L. Anderson what W. W. Barron Jr. owed him. He also had a letter he wanted Guy L. Anderson to look at, but he would not let him show him what W. W. Barron Jr. owed him, nor would he look at the letter. As Guy L. Anderson started out of the house, he said, 'Here is your money.' He told J. Pierce Anderson that he had let W. W. Barron Jr. have over $150 since the deed was made to him on February 17, 1945, but ...