Peacock v. Horne

• Decision Date: 18 February 1925
• Docket Number: 4137,4168.
• Parties: PEACOCK ET AL. v. HORNE. HORNE v. PEACOCK ET AL.
• Court: Georgia Supreme Court

126 S.E. 813

159 Ga. 707

PEACOCK ET AL. v. HORNE.

HORNE v. PEACOCK ET AL.

Nos. 4137, 4168.

Supreme Court of Georgia

February 18, 1925

Rehearing Denied Feb. 28, 1925.

Syllabus by the Court.

Where several writings are relied on to establish a sale of land or of timber growing thereon, or to show authorization by the owner for another to sell the same, and parol evidence is necessary to connect and explain such writings, in order to constitute a contract of sale or to establish such authorization, such writings will not satisfy the statute of frauds.

When the intent is manifest that the contract is to be executed by others than those who actually signed it, it is inchoate and incomplete, and does not take effect as a valid and binding contract, unless executed by all of such parties.

(a) A party who signs and delivers an instrument is bound by the obligations it contains, although it was not executed by all the parties for whose signatures it was prepared, when there is nothing to indicate an intention on the part of him who signs that he is not to be bound thereby until it is signed by others, which intention is brought home to the obligee therein, where there is no express agreement or manifest intent to such effect, and where there is no loss of remedy by way of indemnity or contribution by the failure of other parties to execute the instrument.

Delivery is ordinarily an essential element to the execution of a written contract.

(a) Delivery is complete when the contract, being ready for delivery, is handed or sent to the promisee, with the intention at the time to pass the present title.

(b) A mere manual transition of a paper to the obligee, without mutual intent to give validity to the paper, but with a mutual intent to the contrary, does not constitute delivery.

(c) Where an instrument is prepared by a vendee or promisee to be signed by three parties, with a request that two of them sign it and then transmit it to the third party to be signed by him and returned to the vendee or promisee, and where such third party, on receiving such instrument, declines to sign the same, but instructs his clerk or secretary to return it to the vendee or promisee unsigned, which is done, these facts do not constitute a delivery of such instrument so as to pass title to the property intended to be conveyed thereby to such vendee or promisee.

Writings which on their face are not sufficient to operate as a deed or conveyance of land or growing timber, and to take the transaction out of the statute of frauds, may constitute an equitable estoppel.

(a) An equitable estoppel often arises from silence, acts, and conduct, when the same would not take the transaction out of the statute of frauds, and would not amount to a conveyance of or agreement to convey lands or growing timber thereon.

(b) A contrary holding would make the statute of frauds, which is intended to prevent fraud as well as perjury, a cover for fraud.

(c) Before an equitable estoppel will arise, the party asserting it must have relied and acted upon the acts, conduct, or declarations of the party sought to be estopped, and not upon his own judgment, nor in reliance upon the future execution of some instrument by the party sought to be estopped, which would render resort to estoppel unnecessary.

(d) Conceding, but not deciding, that the letters and telegrams which passed between the plaintiffs, their agent who was conducting the negotiations for the sale of their lands, and the prospective purchasers thereof, touching the sale of the timber on these lands, might operate against the plaintiffs and in favor of the defendant who bought such timber from such prospective purchasers, if the buyer of the timber had relied and acted upon such letters and telegrams, these letters and telegrams would not operate as such estoppel where the prospective purchasers of the land and the defendant, not content to rely and act upon such writings prepared a formal writing to be signed by the plaintiffs to evidence their consent to the sale and their joinder in the conveyance of the timber to the defendant by the negotiating purchasers of the lands.

It is well settled that estoppel conveys no title. Its whole scope is to protect one from loss which, but for the estoppel, he could not escape, and should be limited to saving the party asserting the estoppel from loss.

Error from Superior Court, Calhoun County; W. V. Custer, Judge.

Action by C. H. Peacock and others against J. L. Horne. Judgment for defendant, plaintiffs bring error, and defendant assigns cross-error. Reversed on main bill of exceptions, and affirmed on cross-bill.

C. H Peacock, A. P. Petway, and T. H. Edwards, alleging that they were the owners in fee simple as tenants in common of certain described land in Baker county, Ga., filed a petition in the superior court of Calhoun county, seeking to enjoin J. L Horne from cutting certain cross-tie timber on the land, which was known as the Beechgrove plantation, containing 5,521 acres. The petitioners alleged that the defendant entered upon said land and began to cut and carry away valuable timber growing thereon, and had carried away 2,500 cross-ties, and that the only right or title claimed by the defendant to the said timber arose as follows: The petitioners had some negotiations with one Reynolds, with a view to selling him the plantation above described. The negotiations so far proceeded that a bond for title was actually prepared, but was retained by the plaintiff until the payment of $16,000, a portion of the purchase price. Payment was never made, and the bond for title was not delivered. Petitioners are informed and believe that Reynolds has left the United States and is now somewhere in Europe. He has never attempted to comply with the negotiations, looking to the purchase of the property. On March 21, 1921, Reynolds, in conjunction with one Casey, who petitioners are informed has left for parts unknown, undertook to enter into a contract with the defendant, by the terms of which the defendant was authorized by Reynolds and Casey to enter upon the plantation and cut therefrom the timber. Reynolds and Casey had no authority to execute any such contract, and the same was null and void. After it was executed it was sent to T. H. Edwards, one of the petitioners, with the request that he consent to it and request the other petitioners to give their consent. Edwards did sign what purported to be a consent to the execution of the conveyance to the defendant, but his signature was affixed solely upon the condition that his cotenants would likewise consent thereto. Both Peacock and Petway refused to sign said consent, and have never affixed their signatures thereto, nor have they ever in any manner or form consented to the execution of said contract. Edwards' purported consent is not binding even upon him, because the express condition under which he signed it was not fulfilled, in that Peacock and Petway refused to join therein, because it was wholly without any consideration, and because the contract between Reynolds and Casey and the defendant was never signed or executed by the defendant, and therefore was unilateral and void under the statute of frauds.

The defendant admitted the petitioners' ownership of the land, but claimed the right to cut said timber, because the petitioners by letters and telegrams had authorized Reynolds and Casey to make with the defendant the contract under which he was cutting the cross-ties. He further pleaded that, even if these letters and telegrams did not constitute formal and valid authority, they were sufficient to constitute a legal fraud upon defendant, and thereby the petitioners were estopped from claiming that said Reynolds and Casey had no authority to make said contract. He claimed the right to cut the timber under the written documents, the substantial parts of which are hereinafter given. All of these documents were attached as exhibits to the answer. By amendment the defendant set up (1) that the rights conferred on him by said writing, if all of said parties plaintiff were bound, would be of the value of $40,000, if Petway is not bound, they were of the value of $20,000, and if Edwards alone was bound, they were of the value of $10,000; (2) that at all times during the year 1921 plaintiffs were a partnership under the name of Petway, Edwards & Peacock, formed for the purpose of buying, selling, and dealing in lands, and said Beechgrove plantation had been bought by them, and at all times during said year was held and dealt with as one of its partnership transactions; and (3) the above facts are pleaded against Peacock and Edwards. By another amendment the defendant admitted (1) that plaintiffs, on January 1, 1921, owned the Beechgrove plantation and the timber thereon, but pleaded that plaintiffs, by reason of the facts embraced in this statement, are estopped from claiming said timber as against him; and (2) the defendant assumed the burden of proof and claimed the right to open and conclude. He further set up that he had cut and intended to cut said timber as alleged, and that said cutting would constitute a continuing trespass, unless he succeeded in establishing all or some of the defenses set up by him.

To this answer the plaintiffs demurred on the ground that it set forth no defense to the action and consisted of mere conclusions of law unsupported by the documents relied on in the answer. They specially demurred to paragraph 2 of the amendment to the answer, on the grounds: (a) that the averment that plaintiffs have, by their acts and conduct and by their representations to defendant, misled and caused him to accept the deed from Reynolds and Casey is a mere conclusion of the pleader; (b) that the...