Kirk v. First Georgia Inv. Corp.

• Decision Date: 25 May 1977
• Docket Number: No. 32106,32106
• Citation: 239 Ga. 171,236 S.E.2d 254
• Court: Georgia Supreme Court
• Parties: Mrs. W. P. KIRK et al. v. FIRST GEORGIA INVESTMENT CORPORATION.

Page 254

236 S.E.2d 254

239 Ga. 171

Mrs. W. P. KIRK et al. v. FIRST GEORGIA INVESTMENT CORPORATION.

No. 32106.

Supreme Court of Georgia.

May 25, 1977.

Rehearing Denied June 8, 1977.

Wyatt, Wyatt & Solomon, John M. Wyatt, LaGrange, for appellants.

Lewis, Hunnicutt, Taylor & Daniel, James R. Lewis, LaGrange, Kilpatrick, Cody, Rogers, McClatchey & Regenstein, Thomas C. Harney, Carl I. Gable, Jr., Atlanta, for appellee.

HALL, Justice.

This is an appeal from an order of the Superior Court of Heard County denying appellant's motion for summary judgment and granting appellee's motion for summary judgment. The original action was brought by the appellee who sought specific performance of certain release provisions in a deed to secure debt.

In 1973, A. D. Cannon, Jr. purchased 587.78 acres of land from the appellants. The total purchase price was $270,000, $60,000 of which was paid in cash at closing. A promissory note for $210,000 which was secured by the property was executed in payment of the balance. The terms of the note were as follows: $14,000 principal was due December 31st of each year until paid in full; interest payments were due on March 31, June 30, September 30 and December 31 of each year.

The security deed contained a release provision which provided in part that the grantee would release at the grantor's request, upon payment or prepayment of $500 per acre of the principal, contiguous tracts of at least fifty acres. This release could be exercised by the grantor at any time after the required payment or prepayment by his furnishing the grantee a quitclaim deed containing a description of the property to be released. The release provision was made contingent upon the grantor's not being in default.

Cannon paid the principal and the interest payments due in 1973 and 1974, and the March 31 and June 30, 1975 interest payments (the June payment was made late, but accepted by the appellants). On July 24, 1975 Cannon requested the release of 56 acres, and tendered the requisite quitclaim deed. The appellants refused to release. On August 12, 1975 Cannon conveyed all his interest in the property to First Georgia Investment Corporation, the appellee, who thereafter filed this action on December 29, 1975 for specific performance of the execution and delivery of the quitclaim deed and release of the designated portions of property. No payments on the note have been made since the appellee acquired its interest from Cannon in August 1975.

Appellant enumerates twelve errors by the trial court. We need only reach one in reversing the trial court's decision in this case.

Specific performance is an equitable remedy. In granting the appellee's motion for summary judgment, the trial court ordered the specific performance of the release provision in the security deed. It is a well recognized equitable maxim that to receive equity one must do equity. Code Ann. § 37-104. A party seeking specific performance of a contract must show substantial compliance with his part of the agreement in order to be entitled to a decree. Pope v. Cole, 223 Ga. 448(2), 156 S.E.2d 36 (1967); Lee v. Lee, 191 Ga. 728(1), 13 S.E.2d 774 (1941). In order to support a suit by a purchaser for specific performance of a contract for the purchase and sale of land, the purchaser must have paid the purchase money in accordance with the terms of the contract, or made an unconditional tender thereof before the institution of the action. Jolly v. Jones, 201 Ga. 532(1), 40 S.E.2d 558 (1946). We recently held that this principle applies to a borrower who executes a deed to secure debt and thereafter seeks specific performance of the contract. Wright v. Intercounty Properties, Ltd., 238 Ga. 492, 233 S.E.2d 160, decided February 14, 1977.

In this case we have a deed to secure debt containing a release provision with a default restriction. The record indicates that the appellee's predecessor in interest was current on his payments when he requested the release, but went into default when the release was refused. The contract is clear as to when payments were due. The appellee admits that it has made no payments under the contract since it acquired Cannon's interest in the property in August of 1975. There is also no evidence that the appellee showed an ability or willingness to pay any money due and owing under the contract in his pleadings or by affidavit at the summary judgment hearing, nor was the judge's...