Lightfoot v. Brower

• Citation: 66 S.E. 1094,133 Ga. 766
• Parties: LIGHTFOOT. v. BROWER et al.
• Decision Date: 12 January 1910
• Court: Georgia Supreme Court

133 Ga. 766

66 S.E. 1094

LIGHTFOOT.

v.BROWER et al.

Supreme Court of Georgia.

Jan. 12, 1910.

(Syllabus by the Court.)

1. Appearance (§ 18^*) — Sole Nonresident Defendant—Jurisdiction Acquired.

A plaintiff in ejectment cannot have equitable relief against a sole nonresident defendant. But if such defendant by plea and cross-petition prays affirmative equitable relief, he thereby voluntarily submits himself to the jurisdiction of the court in relation to all matters directly connected with the relief for which he prays.

[Ed. Note.—For other cases, see Appearance, Cent. Dig. § 78; Dec. Dig. § 18.*]

2. Vendor and Purchaser (§ 335*) — Inability of Vendor to Perform Contract-Remedies of Parties.

The charge of the court was adapted to the pleadings and evidence, and the verdict of the jury was an equitable adjustment of the respective rights of.the parties.

[Ed. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. §§ 981-983; Dec. Dig. § 335.*]

(Additional Syllabus by Editorial Staff.)

3. Ejectment (§ 26*) — Defense — Lack of Plaintiff's Title.

A contract purchaser of land could not, where sued in ejectment by the vendors, defend on the ground that the vendors had no title, though it would be ground for action against the vendors for breach of contract and would justify the purchaser in refusing to make further payments on the purchase price.

[Ed. Note.—For other cases, see Ejectment, Cent. Dig. § 112; Dec. Dig. § 26.*]

Error from Superior Court, Greene County; Jos. E. Pottle, Judge.

Action by Annie E. Brower and another against Ab Lightfoot. Judgment for plaintiffs, and defendant brings error. Affirmed.

In 1903 Annie E. Brower and her husband, L. W. Brower, contracted to sell to Lightfoot and others, a tract of land in Greene county. The vendees agreed to pay $900 for the land, $100 cash and the balance in successive an nual installments; and the vendors agreed that upon receipt of the last installment of the purchase money they would execute to the vendees "good and sufficient deeds with covenants of warranty of title." The contract further provided: "The parties of the second part [the vendees] shall be entitled to the possession of said real estate from the delivery of this agreement, and shall pay all taxes thereon. Should they fail to pay said taxes when due, the parties of the first part may do so; and the sum or sums so paid for taxes by the party of the first part shall, with interest, be refunded to them before they shall be compelled to make said deeds. The parties of the second part shall take good care of said property and commit no waste; they may cut necessary wood from the swamps and hedges on said property, but they shall not in any event cut any of the original pine forest or timber. Should the parties of the second part fail to make said payments when due, or to keep said taxes paid, or should they violate any of the stipulations of this agreement, the parties of the first part shall have the right to re-enter said premises and take possession thereof, and to cancel this agreement; and all the money previously paid by the parties of the second part shall be considered as rent for said property, and shall not be refunded." The vendees made the cash payment and went into possession of the property. Subsequently Lightfoot acquired the interest of the other vendees, and made the annual payments for 1904 and 1905. In 1907 the vendors sued Lightfoot to recover possession of the land, and under the equitable pleadings the jury by their verdict awarded the land to the plaintiffs and a judgment to the defendant against the plaintiffs for $73, being the excess of money paid over the rental value. The defendant excepts to the overruling of his motion for a new trial, assigning error on rulings made pending the trial. Other facts are stated in the opinion.

Jas. Davison and Park & Park, for plaintiff in error.

J. P. Brown and Geo. E. Mer-ritt, for defendants in error.

EVANS, P. J. At the close of the plaintiffs' evidence the defendant moved for a nonsuit on the ground that it appeared from the deed upon which the plaintiffs relied to show title that they did not have a fee-simple title, but only a conditional life estate in Annie E. Brower. The trial judge overruled the motion, and the defendant excepted. There was no error in overruling the motion. The defendant, as vendee in a contract of purchase, could not set up, as a defense to an action by the vendor to recover the possession of the land, that the latter had no title. It was not an issuable defense. Hill v. Winn, 60 Ga. 337; 7 Enc. PI. & Pr. 319. The Inability of the vendors to make the title which they had contracted to make would give the vendee a cause of action against the vendor for breach of contract, and would justify him in refusing to make further payments on the purchase price, but could not be set up as a reason why he should be allowed to retain possession of the land as against his vendors and at the same time refuse to pay the purchase price. 29 Am. & Eng. Enc. L. (2d Ed.) 706.

2. The plaintiffs' original declaration was in the form of a...