Couch v. Crane

• Citation: 82 S.E. 459,142 Ga. 22
• Decision Date: 11 March 1914
• Docket Number: (No. 248.)
• Parties: COUCH et al. v. CRANE. CRANE. v. COUCH et al.
• Court: Georgia Supreme Court

82 S.E. 459

(142 Ga. 22)

COUCH et al.

v.CRANE.

CRANE.

v.COUCH et al.

(No. 248.)

Supreme Court of Georgia.

March 11, 1914.

(Syllabus by the Court.)

Error from Superior Court, Payette County; E. T. Daniel, Judge.

Action by A. J. Crane against Mrs. Eva Couch. Judgment for plaintiff, and defendant brings error, and plaintiff files cross-bill of exceptions. Judgment on main bill affirmed in part and reversed in part, and on cross-bill affirmed.

The petition was by A. J. Crane against Mrs. Eva Couch. Its substance was as follows: The plaintiff, on November 16, 1910, sold to Mrs. S. A. Fannie Key a tract of land estimated to contain 530 acres, and certain personal property, for the sum of $27,06.7, payable as follows, $10,087.50 in cash, and $12,000 in six annual installments of $2,000, and one of $2,979.50, due on or before January 15, 1919; the deferred payments being evidenced by notes bearing interest at 6 per cent. per annum from December 1, 1910. A bond for title was executed by the plaintiff to Mrs. Key, wherein the obligor covenanted to convey the property to the obligee on her payment of the purchase-price notes representing the deferred payments. It was stipulated in the bond that should any of the notes remain unpaid for 30 days after maturity, time being of the essence of the agreement, the obligor should have the right to declare all the notes due, and to proceed to collect the same. It was further stipulated that the obligor was to cause the land to be surveyed, and that the last note was to be increased or diminished for such an amount as was represented by the acreage in excess of or less than 530 acres, at the rate of $50 per acre. A survey of the land was had, and the tract was found to contain 11 acres less than the estimated amount, and this deficiency ($550) was credited on the last note. Mrs. Key made the cash payment and paid the note of $2,000 falling due in 1912. On September 12, 1912, she transferred her bond for title to her daughter, Mrs. Eva Couch, who entered into possession of the property and assumed the debt due to the plaintiff for the purchase money of the property. The second note of the series fell due on January 15, 1913, and was not paid, and default in payment had continued for more than 30 days prior to the suit. The plaintiff demanded payment of the purchase money of Mrs. Couch, who refused to pay. The property had deteriorated in value, some of the personal property had been sold off, the live stock was neglected and was in poor condition, and the property would not bring at a sale enough money to satisfy the balance of the purchase-money debt. Mrs. Couch refuses to yield possession of the property. Mrs. Key is dead, leaving no property, and Mrs. Couch has no property except her equity in that purchased from the plaintiff by Mrs. Key. The prayers were for the appointment of a receiver, a sale of the property by the receiver to pay the balance of the purchase price, an injunction to prevent the defendant from selling or Incumbering the property, and a judgment against her for the unpaid purchase money.

At the appearance term the defendant filed a demurrer and an answer to the petition, and at the same term the plaintiff filed a demurrer to the answer. The petition was amended by adding a prayer that the plaintiff recover possession of the property. Afterwards Mrs. Couch, who had been appointed administratrix of her mother, Mrs. S. F. Fannie Key, was made a party defendant in her representative capacity, and filed an answer. The plaintiff tiled a demurrer to the answer of the administratrix. The facts alleged in the answer of Mrs. Couch are the same as those averred in her answer as administratrix of Mrs. Key, the two differing only in respect to the relief prayed. The purchase of the property on the terms as alleged in the petition, the payment of one note, and default as to the others are admitted. It is averred that the plaintiff approached Mrs. Key to sell her the property involved in the suit, and that on account of her feeble health she sent her daughter, Mrs. Couch, and her son-in-law, Mr. Couch, to inspect the property. The plaintiff pointed out a herd of cattle and said they were fine stock; that he was running a dairy; that the cattle were producing milk of the daily value of $20; and that the cows were fine Jerseys, giving 100 gallons of milk per day. He pointed out 150 acres of bottom land, and represented that it was dry (which it was at that time), and would grow fine summer grass, and that he had used this bottom land tor a pasture. He also represented the land as "healthy and free from malaria and all right, " and ideally suited for a dairy farm; that he was rapidly making money on it; and that the property was well worth what Mrs. Key contracted to pay for it. It is averred that these representations were false, in that the condition of the premises was such that it was dangerous to live thereon, because of malaria; that Mrs. Key contracted malaria, and died about two years after moving on the place; and that many of the tenants and their families were afflicted with malaria to such an extent as to interfere with their work. The bottom land was practically worthless for pasture, but Mrs. Couch could not discover, at the time of the inspection, that it was not as represented. The cows were not Jerseys, but of a scrub stock, yielding only 12 or 15 gallons of milk a day; and the plaintiff was not receiving $20 worth of milk at the time. Upon consummation of the contract with Mrs. Key, he told his tenants to remain on the place, as he would be back there within three years to take charge of the premises. The land and personalty were not worth exceeding $12,000. It is averred that the plaintiff practiced an artifice to induce the purchase, by falsely representing himself as a very religious man; that on the occasion of their visit to inspect the property they spent the night at his home, and just before partaking of meals he offered up fervent prayers for divine guidance in the day's business, and these affectations of piety were intended to disarm any suspicion which they might have entertained, and did have that effect; that all of these false representations and artful practices were intended to defraud Mrs. Key into contracting to pay a grossly excessive price for the property; that Mrs. Key erected on the premises two houses of the value of $900, built a wire fence around the pasture land at a cost of $150, and put the land in better condition than it was at the time when purchased. It was admitted that 4 mules and 30 head of cattle had been sold, and about 15 head of cattle had died; but it was averred that, instead of 11 mules which had been purchased, there was now fifteen on the premises, which are more valuable than those purchased, and 45 head of cattle, which collectively are worth more than those originally purchased, and that the land and personalty thereon are as valuable as that embraced in the sale to Mrs. Key. It was further averred that the defendants complained to the plaintiff of his misrepresentations, and requested a rescission of the contract, offering to pay rent for the time they were in possession, if he would pay them back the money they had expended; which request the plaintiff refused. The prayer of the administratrix was that, inasmuch as the consideration had partially failed, and as the payments of her intestate equaled the value of the property, the plaintiff be denied a recovery; and if for any reason this could not be done, she prayed for a recovery of the amount paid by her intestate, and such other relief as might be appropriate. Mrs. Couch expressly prayed for a rescission of the contract, a recoupment of $15,000 damages, and an accounting from the plaintiff of the purchase money paid to himby her mother in pursuance of the contract of sale, in the event the plaintiff elected to recover the land. The court overruled the defendant's demurrer to the petition, and sustained the plaintiffs demurrers to both answers. The defendant excepted to this judgment; and the plaintiff by crossbill excepted to the judgment making the administratrix of Mrs. Key a party defendant.

W. B. Hollingsworth, of Payetteville, and J. F. Golightly, of Atlanta, for plaintiff in error.

J. W. Wise, of Fayetteville, for defendants in error.

EVANS, P. J. (after stating the facts as above). [1] 1. One of the prayers of the petition was for a judgment against Mrs. Couch, to be declared a special lien on the property. The defendant is not liable to the plaintiff on the basis that she was the assignee of the plaintiff's vendee; for it is...