Keiley v. Citizens' Savings Bank & Trust Co.

• Decision Date: 11 June 1931
• Docket Number: 8334.
• Citation: 159 S.E. 527,173 Ga. 11
• Parties: KEILEY v. CITIZENS' SAVINGS BANK & TRUST CO.
• Court: Georgia Supreme Court

159 S.E. 527

173 Ga. 11

KEILEY v. CITIZENS' SAVINGS BANK & TRUST CO.

No. 8334.

Supreme Court of Georgia

June 11, 1931

Rehearing denied July 18, 1931.

Syllabus by the Court.

Preliminary contract, reduced to finality evidenced by deed held merged in deed, and provisions not included in deed are considered abandoned; where purchaser was not shown unable to observe omission from deed of provisions of preliminary contract merged in deed, purchaser could not recover damages for untrue statements contained in contract but not in deed.

Where in a contract for the sale of land the parties executed a preliminary sales contract and subsequently reduced the contract to a finality evidenced by deed, the terms of the preliminary contract were merged into the deed, and terms or conditions or recitals contained in the preliminary sales contract which are not included in the deed will be considered as eliminated, abandoned, or discarded. In such case, where it is not shown that the purchaser could not or did not observe such omission, he will not be permitted to treat the contract as valid and binding and at the same time recover damages because of the fact that the statements contained in the sales contract, but not in the deed, were untrue. The court in this case properly sustained a demurrer to that portion of the answer seeking a recovery from the vendor based upon the allegations such as just stated.

In sale by tract to purchaser, induced to enter into contract by fraud, shortage in acreage may be apportioned; whether vendor was guilty of fraud respecting number of acres sold held for jury (Civ. Code 1910, § § 4122, 4409 4410).

Where the sale of land is by the tract and there is a deficiency or shortage, and the purchaser is induced to enter into the contract of purchase by actual or intentional fraud, the shortage may be apportioned. The question whether there was actual fraud is a question for the jury in the present case to decide.

The judgment is affirmed in so far as it sustains the demurrer to that part of the petition referred to in the first headnote and reversed in so far as it relates to that portion mentioned in the second headnote.

The evidence was sufficient to fix liability for attorney's fees, but the verdict is set aside, so that the amount may be fixed on the new trial, as it may be affected by the issue as to apportionment for deficiency in acreage.

Error from Superior Court, Greene County; James B. Park, Judge.

Suit by the Citizens' Savings Bank & Trust Company against John Keiley. Judgment for plaintiff, defendant's motion for new trial was overruled, and defendant brings error.

Affirmed in part, and reversed in part.

W. A McClain, B. C. Broyles, and Watkins, Asbill & Watkins, all of Atlanta, for plaintiff in error.

Randolph & Woodruff, of Atlanta, and Miles W. Lewis, of Greensboro, for defendant in error.

GILBERT J.

Keiley bought from Citizens' Savings Bank & Trust Company five parcels of real estate, two tracts in Greene county, two in the state of Florida, and the other in the city of Atlanta. Keiley executed to the Trust Company a promissory note for $5,000, payable five years after its date, carrying a provision that, if any one of the annual installments of interest should "not be promptly paid when due," the holder might declare the whole amount to be due, and the usual provision for the payment of attorney's fees. This note was secured by deed conveying the land situated in Greene county, containing provision for acceleration of the whole debt in the event the maker should not promptly pay taxes. Attachment was instituted by the Trust Company, duly followed by the filing of a declaration alleging failure to pay the 1929 taxes and the interest installment due April 1, 1929, the giving of notice for the collection of attorney's fees, and that Keiley resided at Washington, D. C. Attachment was levied upon the land in Greene county. The prayer was for judgment for the amount of the debt, interest, attorney's fees, and costs, and for a special lien on the land.

Keiley filed an answer, which was twice amended. Attached to the answer was an executory sales contract signed by both parties, and a deed subsequently dated effectuating the agreement.

As to the parcels situated in Florida, the contract mentioned recites: "892 acres, more or less, formerly known as the K. R. White property, situate at or near the town of Madison, Fla., same being situated most specifically about three miles easterly from Lovett, Fla., which is the nearest railroad station on the South Georgia Railroad, and is 14 miles northwesterly from Madison, Fla. This property has one or two residence dwellings, together with about six tenant houses with corresponding number of barns and other buildings. The exact number of these are unknown at the present time. (Italics ours.) Property formerly known as the H. E. Beatty land. This tract is likewise near Madison, Fla., but situated in Jasper, Hamilton county, Fla., being four miles off the main road going through the town of Jasper. It has a main dwelling and other smaller tenant buildings barns, well, etc., and consists of 160 acres, more or less."

The deed conveying the first-mentioned piece of property to the defendant is attached to the answer as an exhibit, and contains the following description: "The following described land and real estate lying and being in Madison County, Florida, to wit: All those lots or parts of lots of land Numbers 174, 175, 176, 194, and 195 in Section 27 Township 3 North, Range 8 East; also 50 acres as described in deed from D. M. Wood and wife to K. R. White, recorded in Book 31, page 10, being in section 27, Township 3 North, Range 8 East, all in the State of Florida, Madison County containing in the aggregate 892.7 acres according to an actual survey made by G. L. Tillman, C. E., the several lots being more particularly described as follows: Beginning at the northwest corner of Lot 175, running west along the new State line 4670 feet to the original west land line of lot 175, thence continuing West on the new State line, which is North land line of Lot 176, 1550 feet to a point, thence South in Lot 176, 1914 feet to a point, thence East 198 to a point, thence South 1940 feet to the original South land line of lot 176, thence east along the original land line of lots 176 (and 175, 3497 feet to a point, thence South on lot 194) 694 feet to a point, thence East, still on lot 194, 1463 feet to a point, thence South, still on lot 194, 425 feet to the old State Line, thence Southeast along the old State line 1220 feet to the original East land line of lot 194, thence still along the old State line, being the present South land line of lot 195, 495 feet to a point, thence North, being bounded on the East by the land of A. L. Christian, 1700 feet to the original North land line of lot 195, thence West along the original North land line of lot 195 2200 feet to a point, thence north through lot 174 and being bounded on the East by the land of Christian & Whaley 3501.58 feet to the new State line, which is the North land line of lot 174, thence West along the North land line of lot 174, 2492 feet to the Northwest corner of lot 174 and place of beginning; except from the above described property the following described tract: beginning at a point on the original land line dividing lots 174 and 175, 900 feet from the Northeast corner of said lot 175, running thence West 1961 feet to a point, thence South 700 feet to a point, thence West 650 feet to a point, thence South 1224 feet to a point, thence East 2322 feet to the East original land line of said land lot...