Syllabus by the Court.
1. Upon
the trial of a suit in equity to rescind a sale of land
where specific questions of fact were submitted to the jury
it was improper practice for the court to submit also, over
objection of counsel, the question of whether the sale should
be rescinded or not, that being for the court to decide upon
the special facts found by the jury in answer to the other
questions submitted; but, inasmuch as the facts thus found by
the jury are sufficient to authorize the decree made by the
court, the judgment will not be reversed on this ground.
2.
Polling the jury as to their verdict in a civil case is a
matter of discretion with the trial judge which this court
will not undertake to control; and he may grant a motion to
poll them upon their answer to a specific question, as well
as upon the whole verdict, but his refusal to do so is not
ground for reversal.
3.
Under the contract of sale, the plaintiffs were to be paid
for the land partly in money, and partly in other land to be
conveyed to them by the defendant. The jury, in answer to
questions submitted, found that the defendant could not make
a good title to the land he agreed to convey, and could not
fully compensate the plaintiffs for the loss of the land
that, at the time of contracting, no valuation was placed
upon the plaintiffs' land; and that the conduct of the
defendant constituted a fraud upon the plaintiffs.
Held, that the decree for rescission was proper.
(
a) An offer by the defendant to convey other lands
of the same kind as those he had agreed to convey was not a
compliance with his contract.
4. In
addition to the parts of the record specified by the
plaintiff in error in his bill of exceptions as material to a
clear understanding of the errors complained of, certain
portions of the evidence were sent upon the petition of the
defendants in error. It appearing to this court that this
evidence is superfluous and immaterial, it is directed that
the cost of bringing it up be taxed against the defendants in
error.
Error
from superior court, Polk county: MADDOX, Judge.
An
offer by the defendant to convey other lands of the same kind
as those he had agreed to convey was not a compliance with
his contract.
The
following is the official report:
"Mrs
Hutchins and Mrs. Camp, by their petition, alleged: In
October, 1886, S. B. Bell bargained with them for the
purchase from them of a farm in Polk county for the agreed
sum of $12,000, to be paid as follows: $5,000 cash on
taking possession; $1,400 in 12 months, with 8 per cent.
interest; titles to 11 lots, specified by numbers, in the
twelfth district of originally Appling county, containing
5,390 acres of well-timbered land, these lots being valued
in the purchase at $5,000; and titles to 15 acres of land
in Florida, valued at $6,000. Relying upon the good faith
and ability of Bell to comply with the contract, they
allowed him to take possession of the farm in the latter
part of 1886, and he took full possession thereof about
December 15th. After he had gone into possession he failed
to make the cash payment agreed, postponing it from time to
time upon various excuses, and has only paid $1,800 of the
cash payment agreed upon. Upon full investigation made for
petitioners by their agent, A. A. Camp, of the title of
defendant to the lots of land in originally Appling county,
they are convinced that the titles are worthless, and that
the deeds held by defendant conveying these lands are
forged and fraudulent, and that defendant cannot make any
titles thereto under which it would be safe for them to
take possession. They are informed and believe that a
certain party named holds the genuine titles to seven of
the lots. They do not know who holds the title to the
remaining four, but believe there are conflicting claims to
them. When defendant was informed as to this matter by
them, he promised to give them good titles, but he has
failed to do so, and, so far as they are informed and
believe, is making no effort to do so. When they received
convincing information that his titles were not good, they
offered to modify the bargain, and, in lieu of title to
these lots, to take from Bell his notes for $5,000, the
value placed upon the lots by him in the bargain; the notes
to bear interest at 8 per cent., and payable at any time
set by him within five years; but he rejected this
proposition, still insisting that he would give them
correct titles to these lots. He has failed to pay the
$5,000 cash agreed upon, and to make titles to the land in
Florida, and to execute his note for the deferred payment,
and they have not executed to him any deed or bond or other
obligation to convey the farm. He holds possession of the
farm, is running and cultivating it, and will appropriate
to his own use and probably incumber the crops thereon.
They believe that, if he is solvent, he does not own
sufficient property in Georgia to satisfy any judgment or
decree they might obtain against him. They prayed that the
contract be rescinded; that they be put in possession of
the farm; and for judgment against defendant for whatever
damages they might have suffered, or may suffer, because of
his failure to comply with this contract; also for a
receiver to take charge of the crops, for general relief,
etc. They amended their petition, and further alleged: The
price fixed upon the plantation by them sold to defendant
was $15,000, which they thought it was worth, and they were
induced to sell it for $12,000, because they were satisfied
they could so manage the fine body of pine lands offered in
the trade by defendant at $5,000 as to make their
plantation net them $15,000 or more. The pine lands were
heavily timbered, located close to the railroad, and the
timber on them could have been sawed into lumber at a great
profit, and by ordinary skill and energy they could have
made more than the price fixed upon them by defendant in
the trade. They would not have taken the $5,000, at which
these lands were valued, in cash, because they expected to
make a greater sum out of the timber on them, and their
getting the pine lands at the $5,000 was the main
inducement to make the trade with defendant, and without
such inducement the trade would not have been consummated.
At the time it was made, and throughout the negotiations,
defendant represented to their agent that his titles to the
pine lands were perfect, and when their agent asked to see
the titles defendant told him they were in the hands of his
agent, who lived in Florida, and neither petitioners nor
their agent had any opportunity to examine the titles until
after the trade was consummated, and they relied upon the
representations of defendant that the titles were perfect,
and did not know until after defendant was put in
possession of their plantation that his titles were not
good. His representation that his titles to the pine lands
were good was fraudulent and false, and so known to
defendant, and his deeds were all, or nearly all,
forgeries; the titles to seven of the lots being held by
others, and defendant not now attempting to defend his
titles. He made these false and fraudulent representations
with intent to deceive and cheat them; they were material
to the consummation of the trade; were believed to be true
by petitioners, and acted on by them. They tendered to
defendant all sums that have been paid to them by him, and
prayed that he account to them for rents for their
plantation from the 1st of January, 1887.
"Defendant
answered the petition and amendment as follows: In October,
1886, he had some conversation with A. A. Camp in reference
to the purchase of the farm, but Camp at first asked
$12,000, and defendant would not consent to take it at this
price. Camp then offered to take $10,000 for it, and
defendant did not agree to this proposition. Then in
October, 1886, he told Camp he would trade if Camp would
take 5,390 acres of pine lands, and he then proposed to
give Camp $5,000, to be paid by the last of January, 1887;
$1,400 to be paid in the winter of 1889; 15 acres of land
in Florida, at $600; and the 11 lots of land in originally
Appling, now Clinch, and Echols counties, aggregating 5,390
acres. No price was fixed on this pine land, but he told
Camp he did not know what it was worth. He did agree that,
so far as the Florida land was concerned, he would take it
back at $600 within two years, should it not be worth that
amount in that time, and he is still willing to do so. Camp
then went to see the land, and made a personal inspection
of it, ascertaining that similar land, adjoining and in the
vicinity, could be bought for $100 a lot, and so stated to
defendant; and Camp then told defendant he would and did
accept defendant's proposition. Defendant moved on the
farm, December 17, 1886. Up to January 12, 1887, he paid
Camp, for petitioners, $150, and on January 10, 1887, the
additional sum of $1,714.10. There was a mortgage of $1,800
on the land given by petitioners, which they were to take
up before he would pay over the $5,000, and the final
settlement was delayed by Camp in trying to hunt up and
settle this mortgage. To facilitate matters, defendant
finally agreed with Camp to carry the mortgage, if the
mortgagee would allow it to be taken up within 12 months,
and the mortgagee agreed to this, and defendant then
informed petitioners that he would carry the mortgage, and
asked that a day be set for a final settlement, which was
done. When the time arrived petitioners declined to settle.
Petitioners were not delayed by defendant, but he was ready
at all times to pay the money, give a deed to the Florida
land and the pine land,
...
