Lively v. Munday
| Decision Date | 06 September 1946 |
| Docket Number | 15476. |
| Citation | 40 S.E.2d 62,201 Ga. 409 |
| Parties | LIVELY v. MUNDAY et al. |
| Court | Georgia Supreme Court |
Rehearing Denied Oct. 11, 1946.
Syllabus by the Court.
1. In a suit for specific performance of an alleged written agreement to sell land, where it appeared from the allegations that an exhibit of the contract attached to the petition did not contain all of the provisions of the agreement, an amendment to the petition which merely supplied omitted provisions was not subject to objection or demurrer on the ground that it 'sets up a new and distinct cause of action, in that an entirely different contract is set up.'
2. The following description in the contract of sale, 'all that tract of land in land lot No. 194 and 205 of the * * * district of DeKalb County, Georgia, being * * * acres more of less, located north of Briarcliff Road known as the W. W Lively Estate,' was prima facie sufficient to furnish a key whereby the land could be identified by the aid of extrinsic evidence, and the allegations of the petition considered as a whole were sufficient as against a general demurrer to render such proof admissible.
3. As a general rule, a vendee of land, before bringing his action for specific performance, should tender to the vendor the amount agreed to be paid by him before the execution of the conveyance; but tender by the vendee before suit is excused if the vendor by declaration or conduct proclaims that if a tender should be made its acceptance would be refused. Yet even where such tender before suit is excused, the plaintiffs should still offer in their pleadings to pay the amount which is due or which may be found due by decree of the court.
(a) In the instant case, the plaintiffs in their petition offered to pay into court only a specific sum, and this sum was insufficient under the terms of the contract, for the reason that the plaintiffs had made unauthorized deductions for the expense of a survey and for revenue stamps, and also because they did not offer to pay interest.
4. Time is not generally of the essence of a contract, and it was not by express stipulation or reasonable construction made such in this instance. Accordingly, under the facts of this case, a mere delay of five or six months in making tender was not fatal, the plaintiffs, having been admitted into possession on or about the date of the alleged agreement.
5. The petition was not subject to general demurrer on the ground that the description of the lands as copied from a map or survey enlarged the key language contained in the contract, no conflict appearing.
6. Although the contract was signed by the defendant and another as sellers, the petition alleged that the defendant's covendor had accepted payment and executed a deed conveying his interest in the land, and sought a decree only as to the defendant's interest. In these circumstances, the petition was not subject to special demurrer for failure to make the defendant's covendor a party. Nor was there any merit in other grounds of special demurrer, unless in certain grounds which need not be passed upon, in view of the rulings in the third note, supra, and the corresponding division of the opinion, relating to grounds of general demurrer.
(a) For the reasons stated in that note and division, the court erred in overruling the general demurrer.
On August 3, 1945, W. W. Lively and L. E. Munday filed an equitable petition against C. M. Lively, praying that he be required to specifically perform an alleged contract for the sale of land 'by conveying his interest in said lands to petitioners,' that, upon failure to convey, 'the court decree and vest title in petitioners,' and for general relief. The petition was amended three times. General and special demurrers were overruled, and the defendant excepted.
He demurred to the first amendment, on the ground that it 'sets up a new and distinct cause of action, in that an entirely different contract is set up,' the contents of this demurrer being more fully set forth later in this opinion. No objection was made to the allowance of the other two amendments, one being in response to the judge's rulings on demurrer.
The petition as finally amended contained substantially the following allegations:
1. C. M. Lively is a resident of DeKalb County, Georgia.
2. C. M. Lively and W. R. Lively jointly owned each a half interest in the real estate described in paragraph 3 hereof.
3. On January 15, 1945, the defendant, named above, sold to the plaintiffs the following tract of land and the improvements thereon: Situated in land lots 194 and 205 of the 18th district of DeKalb County, Georgia, known as the 'W. W. Lively Estate' property. Beginning at the northwest corner of land lot 205, running thence south along the land lot line dividing land lot 205 from land lot 204, thirty-two hundred seven (3207) feet to a stone on the land lot line; thence east nine hundred seventy-one (971) feet to a stone and pipe; thence southeast 27 degrees 40 minutes ten hundred seventy-five (1075) feet to an iron pin on Briarcliff Road; thence northeast four hundred twenty-six (426) feet along the northern side of said road to a public road leading northwesterly from Briarcliff Road (and at the property line of M. C. Lively); thence northwest four hundred five (405) feet to an iron pipe; thence northeast one hundred ten (110) feet; thence following the north line of M. C. Lively property four hundred ninety-five (495) feet easterly to a pipe; thence northwest ten hundred thirty-two (1032) feet to an iron pin, at the northwest corner of the W. W.
Lively property; thence east ten hundred forty-five (1045) feet to a pipe on the east land lot line of land lot 205; thence north along said land lot line twenty-seven hundred forth (2740) feet to the northeast corner of the land lot; thence west along the north land lot line twenty-nine hundred five (2905) feet to the point of beginning. All of which is more fully shown by survey of Gordon Nalley, Engr., a copy of which is attached hereto and marked Exhibit 'A.'
4. As a consideration therefor, the plaintiffs agreed to pay the defendant and W. R. Lively $50 per acre, and further agreed to pay the taxes for 1945.
5. This paragraph (also 5 of the original petition) was as follows: 'Petitioners attach hereto as exhibit 'B' a substantial copy of the material portion of a written contract signed by the defendant herein, and offer to comply therewith.' A writing, marked Exhibit 'B', was attached. In the first amendment, filed by the plaintiffs on November 9, 1945, it was stated: 'Come now plaintiffs and amend their petition heretofore filed, and in particular paragraph 5, exhibit 'B,' by adding to Exhibit 'B', after the words 'terms cash,' and before the words 'special stipulations,' the following:' The exhibit 'B' thus referred to, after much amendment, was as follows, the part thereof added by the amendment being shown in brackets:
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