Cowdery v. Greenlee

• Decision Date: 14 November 1906
• Citation: 126 Ga. 786,55 S.E. 918
• Parties: COWDERY. v. GREENLEE.
• Court: Georgia Supreme Court

55 S.E. 918

126 Ga. 786

COWDERY.

v.GREENLEE.

Supreme Court of Georgia.

Nov. 14, 1906.

1. Vendor and Purchaser—Default of Vendee—Objections to Title—Action on Contract.

After a prospective purchaser of land under an executory contract of sale has pointed out his objections to the title and has declined to perform, for specific reasons assigned, he cannot, in defense to a suit for damages for a breach of the contract, urge additional objections to the title which the owner was given no opportunity to meet, and which were known to such purchaser at the time the specific objections were made.

2. Same — Contract — Construction — Title Required.

Under a stipulation that the purchase will be made unless the vendor's title be "legally insufficient" and he shall fail to perfect the same within a reasonable time, it is not the right of the purchaser to demand a perfect record title or to refuse to pay the purchase money simply because one of the muniments of title is a deed which is not attested in such manner as to entitle it to record, there being no pretense on his part that a failure to have it duly registered in any way affected the validity of the vendor's title.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 48, Vendor and Purchaser, §§ 238, 244, 246.]

3. Same—Measure of Damages.

The refusal of the purchaser to perform will not give to the owner the right to resell the land at the risk of the former and hold him liable for a deficiency in the price realized, the true measure of damages being the difference between the contract price and the market value of the land at the time of the breach.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 48, Vendor and Purchaser, §§ 955, 956.]

(Syllabus by the Court.)

Error from City Court of Atlanta; H. M. Reid, Judge.

Action by M. D. Cowdery against M. H. Greenlee. From the judgment plaintiff brings error, and defendant assigns cross-error. Judgment on both main and cross bill of exceptions. Reversed.

The plaintiff, Mrs. Minnie D. Cowdery, declared on "a written contract signed by her and the defendant, Mrs. M. H. Greenlee, for the sale by the former to the latter of a house and lot in the city of Atlanta. The agreed purchase price was $4,200; the purchaser to assume a loan of $2,500, which was an incumbrance on the property, and to make a cash payment of $1,700. This agreement was made "subject to right of purchaser to Investigate titles to the property and to decline to perform if title of the vendor [should] be legally insufficient and she [should fail] to perfect same within a reasonable time, " and the writing contained a stipulation that the cash payment was to be made when the vendor complied with her "obligation to make satisfactory showing as to title." The contract was executed on the 12th day of May, 1904. The plaintiff alleged In her petition that she "faithfully performed all the conditions to be by her performed, and did, on the 28th day of May, 1904, after allowing defendant a reasonable time to examine and pass on plaintiff's title, offer to convey title to said realty to defendant, subject only to the incumbrance mentioned in said written agreement" and did then tender to the defendant her warranty deed to the property, but the defendant declined to perform her obligations under the contract, and failed and refused to pay the price agreed upon as the consideration of the sale. the plaintiff thereupon notified defendant of her intention to proceed to resell the property at the defendant's risk and to hold her responsible for any loss or expense that might be incurred; on June 18, 1904, the plaintiff did sell and convey the premises to one Burn-ham for the sum of $4,000, which was the best price she was able to obtain for the property; and she sought by this suit to recover damages to the amount of $500, which represented the difference between the contract price the defendant had agreed to pay and the sum actually realized after deducting from the amount for which the property was resold, agent's commissions, and lawyer's fees. The defendant admitted in her answer that she had entered into the contract declared on, but insisted that the titles of the plaintiff were, for specified reasons, "legally insufficient and unsatisfactory to the defendant, " and the plaintiff had refused to perfect the same. The defendant also pleaded in bar that the plaintiff had voluntarily released her from all obligation to perform the contract the plaintiff saying a higher price had been offered for the property by another person who wished to buy it. By way of demurrer, the defendant raised the point that, even if the plaintiff was entitled to recover anything under the allegations of her petition, which was denied, the items of loss therein set forth did not constitute any legal or proper measure of damages for a breach of the contract The demurrer was overruled by the court and the defendant filed exceptions pendente lite. The trial on the merits resulted In a judgment of nonsuit. Exception is taken by the plaintiff to this judgment, as well as to various rulings made during the progress of the hearing with regard to the admissibility of evidence offered by her for the purpose of showing title. The defendant by crossbill of exceptions, complains of the overruling of her demurrer to the plaintiff's petition.

It appeared from the testimony of the plaintiff that the defendant had declined to carry out the contract because her attorney raised certain objections to plaintiff's title, one of which was that a deed to her from her husband, J. W. Cowdery, was not officially attested in such a way as entitled it to record. Another objection urged had reference to a suit by one Johnson against J. W. Cowdery respecting the line between the property of the former and that which the plaintiff had agreed to sell to the defendant This suit, the plaintiff testified, had been wound up a year before the trade was made, and the sheriff had put Jtihnson in possession of the strip claimed by him some time before the defendant ever came to see the property. The plaintiff's immediate predecessor in title, J. W. Cowdery, went into possession under a deed from A. J. West to him, dated July 23, 1895, and remained in continuous possession until he sold and conveyed the property to her In 1899, when she entered and held it up to May, 1904. She undertook to carry the burden of showing a complete chain of title from the state down to her husband, and offered in evidence a deed to her, dated February 25, 1899, and admitted to record on March 3d of that year, headed "State of New Jersey, Somerset County, " signed "J. W. Cowdery, " and attested as follows: "Signed, sealed and delivered in presence of: Frank W. Somers, County Clerk of Somerset Co.; Augustus Vanderver." There was also on the deed the impression of a seal bearing the words, "Seal of the County of Somerset." The defendant objected to the admission of this deed on the ground that it was not properly attested for record, and the plaintiff then offered in evidence certain general statutes of the state of New Jersey for the purpose of showing that the county clerk of Somerset county was the clerk of a court of record, and that the seal affixed to the deed was the seal of a court of record. The court, at the instance of the defendant, refused to admit this evidence or to allow the plaintiff to make similar proof by introducing the interrogatories of the deputy clerk of Somerset county, N. J., respecting the character of the court of which the official witness to the deed was the clerk. The attorney who represented Mrs. Cowdery pending her negotiations with Mrs. Greenlee testified that, when the attorney she had employed to investigate the title raised the objection that the deed was not properly attested, his attention had been called to the statutes of New Jersey making the county clerk the clerk of a court of record and the county seal the seal of a court of record. The presiding judge thereupon sustained the defendant's objection to the introduction of the deed, and granted her motion for a nonsuit.

Geo. Gordon and J. A. Branch, for plaintiff In error.

C L. Pettigrew, for defendant in error.

EVANS, J. (after stating the facts). L It was not incumbent on the plaintiff to show, as she undertook to do, that she had perfect title to the property which she had contracted to sell to the defendant. The refusal of the latter to carry out the contract was based upon two specific objections to the title, and all other objections which were known to the vendee, and which might have been, but were not urged against the sufficiency of the vendor's title, were waived. Fenn v. Ware, 100 Ga. 563, 28 S. E. 238; Atlanta Trust Co. v. Close, 115 Ga. 939, 42 S. E. 265; Gavan v. Norcross, 117 Ga. 363, 43 S. E. 771. "Where a party gives a reason for his conduct and decision touching anything involved in a controversy, he cannot, after litigation has begun, change his ground and put his conduct upon another and different consideration. He is not permitted to thus mend his hold. He is estopped from doing it by a settled principle of law." 2 Herman on Estoppel, 947. This doctrine Is especially applicable in a case such as the present where the owner of property expressly stipulates in an agreement of sale that, if the prospective purchaser finds any flaws In the title, he shall point them out to the...