B1vins v. Tucker

• Decision Date: 08 September 1930
• Docket Number: No. 20170.,20170.
• Citation: 41 Ga.App. 771,154 S.E. 820
• Parties: B1VINS. v. TUCKER.
• Court: Georgia Court of Appeals

41 Ga.App. 771

154 S.E. 820

B1VINS.

v.TUCKER.

No. 20170.

Court of Appeals of Georgia,

Division No. 2.

Sept. 8, 1930.

Syllabus by the Court.

A defendant may except directly to the overruling of a general demurrer to the petition, although after the overruling of the demurrer the case proceeded to trial and resulted in a verdict for the plaintiff and the defendant then made a motion for a new trial which is still pending in the court below, since the judgment on the demurrer would have been a final disposition of the case if it had been rendered as claimed by the defendant. There is no merit in the motion to dismiss the bill of exceptions. Newton v. Roberts, 163 Ga. 135, 135 S. E. 505.

Syllabus by the Court.

Where land is sold by the tract, and the deed evidencing the sale recites that the land contains so many acres "more or less, " the vendee cannot have an apportionment of the purchase price on account of an alleged deficiency in the acreage, without alleging and proving actual fraud on the part of the vendor. Finney v. Morris, 116 Ga. 758, 42 S. E. 1020; Emlen v. Roper, 133 Ga. 726, 66 S. E. 934; Montgomery v. Robertson, 134 Ga. 66, 67 S. E. 431. Mere legal or constructive fraud is insufficient to authorize such a remedy to the vendee. Kirkland v. Brew-ton, 32 Ga. App. 128 (2), 122 S. E. 814.

Syllabus by the Court.

In a suit to recover damages for such deficiency, allegations that there was a shortage of 46.33 acres as to a tract sold as 90 acres, more or less, and a shortage of 31.67 acres as to a tract sold as 100 acres, more or less, which in each instance was so gross as to justify a suspicion of willful deception or mistake equivalent thereto; that the defendant represented to the plaintiff that the description in the deed conveying the two tracts was approximately correct, but that the 90-acre tract "might be a little short, but only slightly so if short at all"; that the de-fendant knew at the time of the contract of sale "that the land was short in acreage, or by the exercise of due diligence should have known of such shortage; [and] that the statements and representations as to the acreage contained in said deed were made recklessly and negligently and without regard to the truth and for the purpose of effecting said sale and obtaining petitioner's money"— were insufficient as a charge of actual fraud on the part of the defendant in making the sale.

Syllabus by the Court.

The petition failed to set forth a cause of action, and the general demurrer thereto should have been sustained.

Error from Superior Court, Colquitt County; W. E. Thomas, Judge.

Suit by I. E. Tucker against F. J. Bivins. Judgment for plaintiff, and defendant brings error.

Reversed.

P. Q. Bryan and Martin L. Bivins, both of Moultrie, for plaintiff in error.

Jas. L. Dowling, of Moultrie, for defendant in error.

BELL, J.

I. E. Tucker brought suit against F. J. Bivins to recover a part of the purchase money of two tracts of land sold and conveyed by the defendant to the plaintiff in a deed describing one of the tracts as 90 acres, more or less, and the other as 100 acres, more or less. The petition alleged a shortage of 46.33 acres and 31.67 acres, respectively, in the two tracts, and sought to recover the sum of $1,436.76 as the relative proportion of the purchase price. The defendant filed a general demurrer to the petition, which the court overruled. After this the case proceeded to trial and resulted in a verdict and judgment in favor of the plaintiff. The defendant then made a motion for a new trial, which was still pending in the trial court when he sued out the present bill of exceptions assigning error upon the judgment overruling the general demurrer to the petition. The defendant in error (the plaintiff in the court below) has moved to dismiss the bill of exceptions, upon the ground that the case is still pending in the court below, and that the motion for a new trial "has never been withdrawn, overruled, or dismissed, but now remains of file in said court undisposed of." The question for decision upon the merits is whether the petition contained sufficient allegations of fraud. The averments in regard to that issue were as follows: "Petitioner shows further that the deficiency of 46.33 acres in [the 90 acre tract] is so great as to justify a suspicion of wilful deception, or mistake equivalent thereto; that the deficiency of 31.67 acres in [the 100 acre tract] is so great as to justify a suspicion of wilful deception, or mistake equivalent thereto. * * * Petitioner shows that the defendant represented to him that the acreage set up in his said deed was approximately correct, but that the 90 acre tract referred to and described in the petition might be a little short, but only slightly so if short at all; * * * that defendant knew at the time of said contract of sale that the land was short in acreage, or by the exercise of due diligence should have known of such shortage; that the statements and representations as to the acreage contained in said deed were made recklessly and negligently and without regard to the truth, and for the purpose of effecting said sale and obtaining petitioner's...