Heath v. Miller

• Citation: 54 S.E.2d 432,205 Ga. 699
• Decision Date: 12 July 1949
• Docket Number: No. 16718.,16718.
• Parties: HEATH et al. v. MILLER et al.
• Court: Supreme Court of Georgia

205 Ga. 699

54 S.E.2d 432

HEATH et al.

v.MILLER et al.

No. 16718.

Supreme Court of Georgia.

July 12, 1949.

Rehearing Denied July 27, 1949.

Syllabus by the Court.

The tender made in 1911 by the obligee in a bond for title of the balance due, with a condition attached that he be given a deed executed by the obligors and all trie heirs of a deceased former owner of the property, was invalid as a tender under the Code, § 20-1105, in that it was not unconditional, and it did not stay the accrual of interest since it was not continuing. Since by written agreement the parties submitted the case on the single issue whether such tender was valid or invalid, judgment against the obligee was demanded.

Error from Superior Court, Taylor County; T. Hicks Fort, Judge.

Action in ejectment by Ralph B. Heath and others against O. L. Miller, executor and another. Judgment for defendants and plaintiffs bring error.

Reversed.

This action in ejectment, brought in the fictitious form, has twice been before this court. Heath v. Miller, 197 Ga. 443, 29 S.E.2d 416, and Heath v. Parker, 199 Ga. 241, 33 S.E.2d 904. The pleadings are set forth in the report of those cases, and by agreement and stipulation the parties fixed the question of law to be decided and have by agreement eliminated any issue of fact and submitted the case to the trial judge, the stipulations being as follows: "It is agreed that parties named in petition arc the sole heirs at law of George A. Heath. It is agreed that should the court decide in favor of plaintiffs that the matter of mesne profits be given a jury for determination of amount. It is agreed between the parties that J. T. Parker entered upon the lands in controversy in the year 1909 under a bond for title executed by J. A. Heath and E. H. Heath. Mr. Parker paid the obligations regularly until the year 1911, when and at whichtime he offered to pay J. A. Heath, an obligor, the sum of $174, representing the balance due, and requested performance of the terms of the bond, namely the execution and delivery of a deed to the property as called for in the bond. Mr. Parker insisted on a deed by all the heirs and declined to make payment of the balance due until such deed was obtained. Mr. Parker continued in possession of the property and he and his grantee, O. L. Miller, to whom Mr. Parker conveyed the lands September 21, 1942, are now in possession of the property and were in possession of the property from 1909 to the present time and were in the possession of the property at the time of the filing of this suit, August 24, 1942. At the time Mr. Parker accepted the bond for title from J. A. Heath and E. H. Heath, he had knowledge that the property was owned formerly by George A. Heath, and that George A. Heath was dead at the time, and that there had been no administration on the estate, and Geo. A. Heath was in possession of the property at time of his death. Mr. Parker knew that John A. Heath and E. H. Heath were in charge of the property and Mr. Parker dealt with them.

"The parties plaintiff and the defendants, J. T. Parker and O. L. Miller (all other defendants except defendant in possession having been dismissed), having on July 3, 1946, entered into a stipulation as to all the issues of fact in controversy in this ejectment suit, except as to mesne profits, and this case having been called for trial at this the July term, 1947, of this court and continued, the parties hereto stipulate as to the mesne profits as follows: In the event the plaintiffs are entitled to a judgment and decree for the land here in controversy as against the tender of defendants of $174 conditioned upon all the heirs of George A. Heath simultaneously executing and delivering a deed to the land to J. T. Parker, then the plaintiffs shall also recover of the defendants the sum of $300 as mesne profits, but not the $174. In the event the defendants should be entitled to recover the land under the terms of the tender as stated above, then the plaintiffs shall only recover the sum of $174. It is further stipulated be tween the parties that the bond for title as referred to in the pleadings shall be surrendered into court and cancelled in any event, and if the same shall be lost or destroyed, it shall be properly established and duly decreed cancelled. It is further stipulated that all questions of fact having been stipulated by the parties, the question of law shall be determined by the court without the intervention of a jury at the court house in Muscogee County, upon the convenience of counsel for the parties and the court."

On April 4, 1949,...