Mcdaniel v. Gray & Co.

• Decision Date: 30 September 1882
• Citation: 69 Ga. 433
• Court: Georgia Supreme Court
• Parties: McDaniel, for use. vs. Gray & Company.

69 Ga. 433

McDaniel, for use. vs. Gray & Company.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1882.

Vendor and Purchaser. Contracts. Action. Title. Before Judge Fain. Catoosa Superior Court. February Term, 1882.

Reported in the decision.

A. T. Hackett; W. K. Moore; T. R. Jones, for plaintiff in error.

R. J. McCamy, for defendants.

Crawford, Justice.

We P. McDaniel, agent, etc., bought of C W. Gray & Co., a vacant lot in the city of Atlanta, for which he paid cash $100.00, and gave his notes payable in four installments, extending over a space of some six months, for the balance, and took a bond for titles.

In that bond was the following clause: "Now if he shall well and truly pay said notes at the times above specified, then the said C. W. Gray & Co. are bound toexecute to said McDaniel, agent as aforesaid, or assigns, a good and sufficient title to the land aforesaid, but on failure of the said McDaniel. agent as aforesaid, to pay the aforesaid sums of money, or either of them, at the times therein specified, then the above obligation to be void and of no effect."

The notes were never paid. A short time before the last fell due Gray & Co. re-entered upon the land, the same being still vacant, re-sold it to another purchaser, and upon the payment of the purchase money made him a title.

This suit was brought by McDaniel, the first purchaser, to recover of Gray & Co. the $100.00 paid to them on this land.

The court below on the trial ruled, that to entitle him to recover, he must first show compliance, or an offer to comply with his contract. That if he failed to pay the notes, or any part of them when they fell due, Gray & Co. could take possession of the land and sell it, and before he could recover back the money paid, he must show that he was ready and willing to comply by paying the money for said land prior to the bringing of this suit, and this he must do, notwithstanding the fact that Gray & Co. may have sold the land, and put it out of their power to comply on their part.

On this ruling of the court error is assigned.

Under this contract of sale, we hold that upon the failure of the purchaser to pay the notes as they fell due, the vendors had the right to reduce them to judgment, file a deed and sell the land, as provided by law in such cases; or they had the right to their action of ejectment; or if the land were still vacant and unoccupied, to re-enter and take possession.

They adopted the latter course. This act on their. part, as shown by the proof, was a rescission of the contract, and they have since held and maintained their right to the land, because of the failure of the purchaser tocomply with his part of the contract. Thus repudiating the contract, and repossessing...