McKown v. Heery
| Decision Date | 10 May 1946 |
| Docket Number | 15453. |
| Citation | 38 S.E.2d 425,200 Ga. 819 |
| Parties | McKOWN v. HEERY. |
| Court | Georgia Supreme Court |
Rehearing Denied June 6, 1946.
Syllabus by the Court.
The petition in the present case is one seeking the specific performance of a contract to sell land; and the allegations of the petition being insufficient to show a valid and unconditional tender of the purchasemoney, the court did not err in sustaining a general demurrer to the petition.
On August 14, 1945, H. E. McKown brought an equitable petition against H. T. Heery for specific performance, alleging that on April 8, 1943, the plaintiff and the defendant entered into a 'lease and option of purchase agreement, as shown by the copy attached to the petition. This agreement provided that Heery, for a stipulated rental, payable monthly in advance, would rent to McKown described land for a term of two years from April 8, 1943; that, in the event any rental should become due and remain unpaid for a period of five days, the agreement should become void; that 'the party of the first part [Heery] agrees to give the party of the second part [McKown] an option to purchase said property together with all of the entire tract owned by party of the first part, at said location [with described exceptions],' the purchaseprice for said tract to be $4,250. It was alleged that in April, 1945, the defendant accepted the usual rental for the property from the plaintiff's agent, accepting rent for the months of May, June, July, and August, 1945, thereby renewing the lease and option for another term of two years from April 1945; that, desiring to exercise the option, the plaintiff went to the expense of having the title to the property examined and arranging to secure the funds to pay the defendant the purchase-price of the property; that 'after petitioner had gone to said expenses and raised the funds with which to make said purchase, he called upon defendant to execute to him a warranty deed to said property, and made the offer to pay defendant the full sum of $4250 as agreed by said option to purchase, and defendant refused to execute to him a warranty deed to said property, and refused to accept the said payment of $4250 for the payment of said property, which offer and refusal was made August 13, 1945.' The defendant demurred generally to the petition on the ground that it set forth no cause of action. The demurrer was sustained, and the exception is to this judgment.
G. H. Howard, Thos. L. Slappey, and Wesley G. Bailey, all of Atlanta, for plaintiff in error.
B. L. Milling and Mitchell & Mitchell, all of Atlanta, for defendant in error.
HEAD Justice (after stating the foregoing facts).
1. There is no merit in the contention that the option to purchase is void because it is without consideration, since under the terms of the contract the optionee was to pay a specified sum per month as rental. Such payment would be sufficient consideration to support the option, which is part of the same contract. Walker v. Edmundson, 111 Ga. 454, 457, 36 S.E. 800; Turman v. Smarr, 145 Ga. 312(3), 314, 89 S.E. 214; Crawford v. Smith, 151 Ga. 18, 105 S.E. 477; Pope v. Read, 152 Ga. 799(1), 802, 111 S.E. 382.
The present case is distinguishable from Goodman v. Spurlin, 131 Ga. 588, 62 S.E. 1029, where the option to purchase was not part of a lease, recited no consideration, and there was no acceptance by the optionee before the option was withdrawn.
2. 'Where the covenant gives the lessee the option to purchase at any time for a specified sum, he may exercise the option at any time within the term of the lease.' 3 Thompson on Real Property, 490, § 1329. In the absence of a specified date for exercising the right of purchase, the option will be construed as operative for the term of the lease or renewal thereof, and such option would not be void as containing no time limit within which the right to purchase might be exercised....
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Estate of Ryan v. Shuman, A07A0833.
...(1961) (rental under lease could constitute sufficient consideration to support purchase option given to lessee); McKown v. Heery, 200 Ga. 819, 820(1), 38 S.E.2d 425 (1946) ("[S]ince under the terms of the contract the optionee was to pay a specified sum per month as rental[,][s]uch payment......
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St. Regis Paper Co. v. Brown
...and options appendant. In "establishing a rule for Georgia," the majority simply disregards existing Georgia law. 1 In McKown v. Heery, 200 Ga. 819, 38 S.E.2d 425 (1946), this court was concerned with the validity of an option to purchase realty contained within a lease. The court stated: "......
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St. Regis Paper Co. v. Brown
...which appellant contends supports its argument that an option to purchase in a lease agreement does not violate the rule (McKown v. Heery, 200 Ga. 819, 38 S.E.2d 425), does not stand for the proposition advanced by appellant. The significant language in McKown reads as follows: " 'Where the......
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Redmond v. Sinclair Ref. Co, 16449.
...Ga. 312(3), 314, 89 S.E. 214; Crawford v. Smith, 151 Ga. 18, 105 S.E. 477; Pope v. Read, 152 Ga. 799, 802, 111 S.E. 382; McKown v. Heery, 200 Ga. 819, 820, 38 S.E.2d 425.' 3. It is contended that the provision contained in the notice to exercise the option to purchase, to the effect that th......