Massell Realty Co v. Hanbury, (No. 5945.)

• Citation: 141 S.E. 653,165 Ga. 534
• Decision Date: 16 November 1927
• Docket Number: (No. 5945.)
• Parties: MASSELL REALTY CO. et al. v. HANBURY et al.
• Court: Supreme Court of Georgia

165 Ga. 534

141 S.E. 653

MASSELL REALTY CO. et al.

v.HANBURY et al.

(No. 5945.)

Supreme Court of Georgia.

Nov. 16, 1927.

Rehearing Denied Feb. 20, 1928.

(Syllabus by the Court.)

Atkinson and Hill, JJ., dissenting.

Error from Superior Court, Pulton County; John D. Humphries, Judge.

Petition by Thomas P. Hanbury and another against the Massell Realty Company and another, in which Carrie C. Hanbury, administratrix of the estate of plaintiff named, was added as party plaintiff. Judgment for plaintiffs, defendants' motion for new trial was overruled, and defendants bring error. Affirmed.

Thomas P. Hanbury and Mrs. Leila G. Col-lings filed petition against Massell Realty Company and Ben J. Massell for specific performance of a contract as follows:

"$100.00 Atlanta, Ga., Sept. 13, 1923.

"Received of Massell Realty Company one hundred and no/100 dollars as part purchase money on the following described property: Improved property in the city of Atlanta, Ga., being a residence on lot 59x190 feet, more or less, and known as No. 667 Whitehall St., which we have this day sold to the purchaser above named, subject to approval of owner or his agent, and title being good, or made good within a reasonable time, for the sum of ten thousand and no/100 ($10,000.00) dollars to be paid as follows: $2,000.00 cash on or before Nov. 1, 1923; assume loan of approximately $900.00 now outstanding against said property, which loan bears eight per cent. interest, matures inabout eighteen months, and can be taken up at any time prior to maturity by paying interest to date; balance to be paid in two notes maturing on or before twelve months, bearing seven per cent. interest. Taxes to be paid as fixed by law. Rents and insurance to be prorated to date sale is closed. House on premises not to be wrecked until $2,000.00 is paid. The above-mentioned note to be indorsed by Ben J. Mas-sell. [Signed] Burdett Realty Company, Agents, per A. C. Burdett.

"I hereby agree to purchase the above-described property on terms and conditions above named. [Signed] Massell Realty Co., by Ben J. Massell, Purchaser.

"I hereby approve of the above-mentioned sale on the terms and conditions named, and agree to pay Burdett Realty Company, Agents, on the date formal transfer is made a commission of regular dollars. [Signed] T. P. Hanbury, Mrs. Leila G. Collings."

On November 9, 1923, the time of performance of the contract was extended upon the following application:

"Atlanta, Ga., Nov. 9, 1923.

"Mr. T. P. Hanbury, GO Gordon St., City-Dear Sir: With reference to the contract dated September 13, 1923, of Massell Realty Company to purchase from yourself and Mrs. Leila G. Collings improved property known as No. 667 Whitehall street, for a consideration of $10,-000.00, we hereby request you to grant us an extension of sixty days or until January 1, 1924, in which to consummate such contract according to the terms and conditions stipulated therein. In the event this extension of time is granted we will adjust interest on the purchase price as of November 1, 1923, and assume payment of taxes for the year 1924; it being understood that we are to receive such rents as may be collected on said property after November 1, 1923. It is further understood that the contract to purchase as above specified remains in full force and effect according to the terms and conditions specified therein.

"Yours very truly, Massell Realty Company, by Ben J. Massell."

The time of performance of the contract was again postponed upon the following request:

"Mr. T. P. Hanbury, 60 Gordon St. City-Dear Sir: In consideration of further extension of time, we hereby agree to consummate on or before July 15, 1924, and formally close the deal for purchase of property known as No. 667 Whitehall street pursuant to contract dated September 13, 1923, and subsequent agreement of November 9, 1923, between the undersigned as purchasers and T. P. Hanbury and Mrs. Leila G. Collings, as owners.

"Very truly yours, Massell Realty Company, by Ben J. Massell, President."

In July, 1924, petitioners tendered to defendants a deed to the property, and demanded that they perform the contract, but they failed and continued to fail to perform. Petitioners allege their ability and willingness to comply with the contract, and offered to make to Massell Realty Company a good and sufficient title to the property, subject to the $900 loan assumed by it. Attached to the petition was a copy of the deed tendered to the defendants, and plaintiffs offered to make any other proper deed to the property that the company might prepare.

The defendants generally and specially demurred to the petition. The grounds of general demurrer are: (a) That the petition sets out no cause of action; and (b) that the contract attached to said petition is too vague, uncertain, and indefinite to constitute a contract legally enforceable. Ben J. Massell demurred specially to the allegation that he made the contract, upon the grounds: (a) That it is a conclusion of the pleader; and (b) that the contract is unilateral, and is too vague, uncertain, and indefinite to constitute a contract legally enforceable; and to purported description of the loan on the property, because it is not a true description of such stipulation as it appears from the contract. The defendants demurred specially to the allegation that the contract was made by Massell Realty Company "by and with the consent of the said Ben J. Massell, " as irrelevant and as a conclusion of the pleader; and to the allegation of description, for the reason that the deed referred to contains a materially different description of the property from that specified in the contract. The demurrers were overruled, and the defendants excepted pendente lite and assigned error. The plaintiffs amended by alleging that the contract provided for two notes for the balance of the purchase price, because there were two vendors.

On March 5, 1926, the death of T. P. Hanbury was suggested of record, and on March 15, 1926, Carrie C. Hanbury as his administratrix was, upon motion, made a party plaintiff. The defendants moved to dismiss the action, upon the ground that the heirs at law of the decedent should be made parties too before the cause could proceed. The court overruled this motion, and exceptions pendente lite were taken, on which error was assigned. The defendants in their answer admitted the execution by Massell Realty Company of the contract which plaintiffs seek to have specifically performed, but they denied that Ben J. Massell individually entered into any contract with them. They alleged that the extension agreements of November 9, 1923, and June 17, 1924, were not in their possession, and so they were unable to admit or deny the allegations touching them. They set up that one of the deeds in plaintiffs' chain of title was a sheriff's deed to Mary E. Ozburn, that no fi. fa. was attached to or recorded with the deed, that it was insufficient to convey a title to Mary E. Ozburn, and that the property involved is a portion of the property purporting to be conveyed by said deed; that there are in plaintiffs' chain of title six deeds which purport to convey property of which the property involved is a portion, but in each of saiddeeds there is a reservation of a graveyard containing approximately one-eighth of an acre, and it is impossible for defendants to ascertain whether or not said graveyard or any portion thereof lies within the boundaries of the lot mentioned in the contract; that in 1886, by a deed recorded in Book B-3, page 491, there was conveyed to Rosa A. Hanbury a life estate in said property, and so far as defendants know said life estate has not terminated; that said contract describes said lot as being 59 by 190 feet, whereas it is not of said dimensions, as shown by the deed attached to the petition as having been tendered; and that these defects in plaintiffs' title were called to their attention, and they have not been cured or corrected.

The defendants tendered an amendment to their answer, striking the allegation admitting the execution of the contract, and alleged that the Massell Realty Company executed a paper similar in all respects to that referred to in the petition, except that the contract so executed did not, at the time of its execution, provide that the balance of the purchase money should be evidenced by two notes, and except that said paper did not contain the provision, "house on premises not to be removed until $2,000.00 is paid." They set up that said changes were material, and were made by plaintiffs after the execution thereof; that Ben J. Massell, who signed the original paper and acted in the matter for the company, did not consent to said changes, and did not know that they had been made on or before June 17, 1924.

The evidence authorized a finding of the following facts: At the time the Massell Realty Company signed its proposal, constituting a part of the contract, it contained the stipulation that the balance of the purchase money was to be evidenced by one note, and did not contain the words, "house on premisses not to be wrecked until $2,000.00 is paid." The instrument as thus changed and executed was returned to Ben J. Massell, and a copy thereof was kept in the office of the company, and was produced by it and introduced on the trial by the plaintiffs. The title to the property was examined by an attorney for Mas-sell Realty Company, and on April 7, 1924, he made a report to it of the condition of the title. In this report the attorney stated that he found the following objections to the title: (1) That in six of the back deeds conveying the land of which the property involved is a part, an old graveyard was reserved, and that proof should be made that this graveyard was not located on the property involved. (2) That in the chain of title is a sheriff's deed, and that the fi. fa. is not of record. (3) That Rosa A. Hanbury acquired title to the property in 1886,...