McConnell v. White

• Court: Georgia Court of Appeals
• Writing for the Court: FELTON
• Citation: McConnell v. White, 91 Ga.App. 92, 85 S.E.2d 75 (Ga. App. 1954)
• Decision Date: 14 October 1954
• Docket Number: 35307,Nos. 35306,No. 1,s. 35306,1
• Parties: McCONNELL et al. v. WHITE et al. WHITE et al. v. McCONNELL et al

Page 75

85 S.E.2d 75

91 Ga.App. 92

McCONNELL et al. v. WHITE et al.

WHITE et al. v. McCONNELL et al.

Nos. 35306, 35307.

Court of Appeals of Georgia, Division No. 1.

Oct. 14, 1954.

Adhered to on Rehearing Nov. 16, 1954.

Syllabus by the Court.

1. Where a contract of purchase for land describes the land by metes and bounds, and the vendor is unable to give good title and undisturbed possession of a portion of the land lying within such boundaries, in an action by the vendor for the purchase price the vendee may setoff the value of that portion at the time of the breach. The court erred in sustaining the demurrer to the defendants' plea of partial failure of consideration and cross-action and in dismissing them.

2. The correct measure of damage in a cross-action as described in headnote 1 is the relative value of the portion to which the vendor cannot give good title and undisturbed possession, and the court did not err in sustaining the special demurrer to the allegations of damage to the remainder, rather than the correct measure of damage.

3. Where the court sustains a demurrer to certain defensive pleadings and gives leave to amend, the defendant has the right to amend at any time prior to the rendition of a judgment after the expiration of the time allowed for amendment on the sufficiency of the pleadings. The cross-bill of exceptions is without merit.

W. A. White and H. J. White sued T. J. McConnell and Marianne McConnell on three promissory notes. The defendants filed their plea and answer, to which the plaintiffs demurrer. The defendants then amended their plea and answer. To the amended plea and answer the plaintiffs renewed their demurrers. The court sustained the renewed demurrers and granted the defendants leave to amend. The defendants then voluntarily struck all the material allegations of the plea and answer as amended and amended their plea and answer by filing a plea of partial failure of consideration and a prayer of setoff. The plea and answer as finally amended alleged that the notes sued on were given to represent the balance of the purchase price for land sold by the plaintiffs to the defendants under a bond for title, a copy of which was attached to the plea and answer. The defendants alleged that title to 10 1/2 acres included within the boundaries of the land as described in the bond for title was not in the plaintiffs but had been adjudicated by the Superior Court of White County to be in another party, and that the plaintiffs were unable to convey to the defendants title to said 10 1/2 acres. The boundaries of the 10 1/2 acres were fully described in the plea. The defendants prayed for a setoff. The renewed demurrer to the plea, answer and cross-action as finally amended was sustained and the plea, answer and cross-action were stricken. On the trial of the case the defendants offered no evidence, and the court directed a verdict for the plaintiffs. The defendants now except to the sustaining of the demurrers to their plea, answer and cross-action as finally amended and the dismissal thereof, to the admission over objection of certain evidence, and to the direction of the verdict.

C. Winfield Smith, Brannon & Brannon, Gainesville, for plaintiff in error.

Wheeler, Robinson & Thurmond, Gainesville, for defendant in error.

FELTON, Chief Judge.

1. The bond for title described the land by metes and bounds and the vendess were entitled to receive title to and possession of all the land described by such metes and bounds. McElroy v. McElroy, 142 Ga. 37, 38(5), 82 S.E. 442; May v. Sorrell, 53 Ga. 47, 53, 111 S.E. 810; Blackwell v. Partridge, 156 Ga. 119, 130(5), 118 S.E. 739; McCook v. Council, 202 Ga. 313(1), 43 S.E.2d 317. If the vendors are unable to put the title to any portion of the lands so described in the vendees and put the vendees in undisturbed possession thereof, the vendees in an action by the vendors for the purchase price, may setoff the value of the portion to which title and possession cannot be given by the vendors. Code, § 29-202; Gibson v. Alford, 161 Ga. 672(2c), 132 S.E. 442. The defendants' cross-action is one of set-off and is not one seeking a rescission of the bond for title or a reformation thereof. The contention by the vendors that any shortage in the land is taken care of by the phrase 'more or less' in the acreage description is without merit. Code, § 29-201, which provides that 'this qualification ['more or less'] will cover any deficiency not so gross as to justify the suspicion of wilful deception, or mistake amounting to fraud', does not apply to sales of land by metes and bounds. Blackwell v. Partridge, 156 Ga. 119, 130(5), 118 S.E. 739; Dorsett v. Roberds, 172 Ga. 545, 552(7), 158 S.E. 236. Further, description by metes and bounds controls over the quantity specified in the deed. Carswell v. Sanders, 182 Ga. 251, 185 S.E.2d 282. The contention that any fraud or misrepresentation by the vendors has been waived by the vendees' possession of the land for 7 1/2 years without seeking relief is without merit. The vendees' cross-action is not dependent upon fraud or misrepresentation being shown. Even if the vendees had had knowledge at the time of the execution of the bond for title that the land as described by metes and bounds did not contain the 10 1/2 acres, such knowledge would not have barred their present cross-action. Foute v. Elder, 109 Ga. 713, 714, 715, 35 S.E. 118. It is true that in Early v. Conn, 190 Ga. 660(1), 10 S.E.2d 177, the Supreme Court held that a vendee in 'undisturbed possession' of lands cannot defeat an action by the vendor for the purchase price of the lands on the ground that the vendor did not have good title to such lands. The reason for this principle was stated by Chancellor Kent in Abbott v. Allen, 2 Johns.Ch., N.Y., 519, 7 Am.Dec. 554, as follows: 'It would lead to the greatest inconvenience, and perhaps abuse, if a purchaser in the actual enjoyment of land, and when no third person asserts or takes any measures to assert a hostile claim, can be permitted on suggestion of a defect or failure of title, and on the principle of quia timet, to stop the payment of the purchase-money, and of all proceedings at law to recover it. Can this court proceed to try the validity of the outstanding claim in the absence of the party in whom it is supposed to reside, or must he be brought into court against his will, to assert or renounce a title which he never asserted, and perhaps never thought of.' See Henderson v. Fields, 143 Ga. 547, 549, 85 S.E. 741. We also recognize that where there is no allegation to the contrary, the vendee is presumed to be in possession under the contract of purchase. Mallard v. Allred, 106 Ga. 503, 504(1a), 32 S.E. 588. However, while there is no positive and direct allegation that the vendees are not in possession of the 10 1/2 acres here in dispute, the plea and answer contained allegations to show that the vendees were not in undisturbed possession of the 10 1/2 acres, and that they did not have undisputed title...