Chastain v. Platt, (No. 5963.)

• Decision Date: 16 May 1928
• Docket Number: (No. 5963.)
• Citation: 143 S.E. 378,166 Ga. 307
• Parties: CHASTAIN . v. PLATT et al.
• Court: Georgia Supreme Court

166 Ga. 307

143 S.E. 378

CHASTAIN .

v.PLATT et al.

(No. 5963.)

Supreme Court of Georgia.

May 16, 1928.

(Syllabus by the Court.)

Certiorari from Court of Appeals.

Action by O. S. Chastain against W. H. Piatt, administrator, and others. Judgment for defendants, and plaintiff brings certiorari. Reversed.

W. I. Maclntyre and J. E. Craigmiles, both of Thomasville, for plaintiff.

C. E. Hay, of Thomasville, for defendants.

HINES, J. This case is In this court upon certiorari brought to review the opinion of the Court of Appeals in Stanaland v. Chastain, 36 Ga. App. 581, 137 S. E. 409. In addition to the facts appearing in the opinion of the Court of Appeals, the plaintiff in his petition alleged that the purchasers had refused to pay the balance of the purchase money, and that he, under the contract of purchase, after receiving the initial payment on the purchase price of the land involved, and after putting the purchasers in possession thereof, which the purchasers still retained, "was to do nothing more until the balance of" the purchase money "was paid."

Where a vendor sues his vendees for a balance due upon the purchase money of land, the purchasers having paid part of the purchase money, and having taken and retained possession of the land purchased, Is his petition subject to a general demurrer because it falls to allege that he has tendered to the defendants a deed to the property, or that he is able and willing to make title on recovery of judgment and the satisfaction of the same by the defendants, the petition alleging that the purchasers have refused to pay the balance due on the purchase money, and that the vendor was to do nothing more until the balance of the purchase money was paid? The proper answer to this question depends upon whether the covenant of the vendor to convey and the covenant of the purchasers to pay the balance due on the purchase money of this land were dependent or independent covenants, and, if the covenants were dependent, whether performance of the covenant of the seller was waived by the purchasers under the allegations of the petition. If the covenant of the vendor to convey and that of the purchaser to pay the balance of the purchase price were dependent covenants, and performance of the covenants of the vendor has not been waived by the purchasers, then, to entitle the vendor to recover the balance of the purchase money, he must allege a tender of a conveyance, or an offer to convey to the vendees. Booth v. Saffold, 46 Ga. 278. Where the contract is executory, and the covenant of the purchaser to pay the purchase money is independent of the vendor's agreement to con-vey, an action by the vendor will lie for the

unpaid and overdue purchase money, although there has been no conveyance or offer to convey on his part to the vendee. 27 R. C. L. 454, § 168; Id. 611, § 365.

Are these covenants dependent, under the allegations of the petition? We are of the opinion that they are not. The petition alleges that, after the purchasers paid the initial payment of purchase money to the vendor, and the latter put the purchasers in possession, the vendor was to do nothing more until the full purchase money was paid. In these circumstances, the covenant of the purchaser to pay and that of the vendor to convey were not dependent or concurrent. It necessarily follows that a tender of conveyance or an offer to convey, by the vendor to the vendees, was not a condition precedent, performance of which was necessary to enable the vendor to sue for the balance of the purchase money due on this land. Where by the contract payment is to precede the conveyance, the tender of a deed or an offer to convey is not necessary to an action for the purchase price. Loud v. Pomona Land & Water Co., 153 U. S. 564, 14 S. Ct. 928, 38 L. Ed. 822; Broughton v. Mitchell, 64 Ala. 210; Vandiver v. Reynolds, 174 Ala. 582, 57 So. 462; Mayers v. Rogers, 5 Ark. 417; Davis v. Heady, 7 Blackf. (Ind.) 261; U. S. Installment Realty Co. v. De Lancy Co., 152 Minn. 78, 188 N. W. 212; Morris v. Sliter, 1 Denio (N. Y.) 59; Adams v. Wad-hams, 40 Barb. (N. Y.) 225; Walker v. Hewitt, 109...