Chastain v. Schomburg, 45436

• Decision Date: 04 May 1988
• Docket Number: No. 45436,45436
• Citation: 258 Ga. 218,367 S.E.2d 230
• Parties: CHASTAIN v. SCHOMBURG.
• Court: Georgia Supreme Court

Page 230

367 S.E.2d 230

258 Ga. 218

CHASTAIN v. SCHOMBURG.

No. 45436.

Supreme Court of Georgia.

May 4, 1988.

Kenneth M. Henson, Jr., Columbus, for J.B. Chastain.

Stephen G. Gunby, Columbus, for Fred Schomburg, Jr.

CLARKE, Presiding Justice.

In 1975 Appellee Schomburg ("Seller") conveyed by deed of gift a four-tenths undivided interest in 25 acres of land to his four children. In November, 1986, Seller signed a sales contract for the property with Appellant Chastain ("Buyer"). The record shows that Buyer left $5000 with him. Buyer alleges that he later tendered $75,000, the balance under the contract, but that Seller refused to sell because his children did not agree to sell. The record shows that on two previous occasions Seller conducted transactions regarding the property without obtaining written authority from all of the other owners. Seller's three daughters all acknowledged that Seller and his son (their brother) had authority to handle negotiations concerning the property. Later in November Seller entered into a sales contract with St. Stephen's Church.

Buyer filed suit seeking specific performance of the contract or, alternatively, specific performance of that part of the contract which related to the 60% undivided interest of Seller or, alternatively, damages for breach of contract.

Buyer appeals the trial court's granting Seller's motions for partial summary judgment and dismissal. The court treated the motions as a motion for summary judgment and granted summary judgment on the grounds that the Seller did not own the entire 25 acres at issue and the contract was otherwise unenforceable and that Seller did not commit fraud upon the Buyer. The court also granted that part of Buyer's motion for summary judgment asking that Seller's counterclaim be dismissed. Seller does not appeal the dismissal of the counterclaim.

This case is controlled by our holding in Johnson v. Sackett, 256 Ga. 552, 350 S.E.2d 419 (1986), and the contract is enforceable to the extent of the Seller's interest. Specific performance to the extent of the Seller's interest is an appropriate remedy for a breach of a contract to sell land owned with another who is not a party to the contract. Cf. Deal v. Dickson, 231 Ga. 366, 202 S.E.2d 41 (1973); see also, Deal v. Dickson, 232 Ga. 885, 209 S.E.2d 214 (1974). Brega v. CSRA Realty Co., 223 Ga. 724, 157 S.E.2d 738 (1967) and Jolles v. Holiday Builders, Inc., 222 Ga. 358, 149 S.E.2d 814 (1966), relied upon by Seller, hold that "A court of equity can not decree the specific performance of a contract wherein the purported vendor agrees to sell land which belongs to another." Jolles v. Holiday Builders, Inc., supra, at 360 149 S.E.2d 814. While this is true, specific performance is available to the extent of the purported vendor's own interest in the property where he has contracted in his own name.

Seller contends that since the contract price was for the entire tract, the court cannot reform the contract to apply to 60% of the whole. This contention is without merit. A requirement for specific performance is an unconditional tender of the contract price unless it is clear from actions of the seller that the tender will be refused. Fraser v. Jarrett, 153 Ga. 441, 112 S.E. 487 (1922). Where there has been a tender of the whole the adjustment in price for a part performance is by way of damages, not reformation of...