Reliance Realty Co. Inc v. Mitchell

• Decision Date: 15 February 1930
• Docket Number: No. 19628.,19628.
• Citation: 152 S.E. 295,41 Ga.App. 124
• Parties: RELIANCE REALTY CO., Inc. v. MITCHELL et al.
• Court: Georgia Court of Appeals

41 Ga.App. 124

152 S.E. 295

RELIANCE REALTY CO., Inc.

v.MITCHELL et al.

No. 19628.

Court of Appeals of Georgia,

Division No. 2.

Feb. 15, 1930.

Syllabus by the Court.

Error from City Court of Waycross; J. L, Crawley, Judge.

Suit by the Reliance Realty Company, Inc., against B. B. Mitchell and another. Judg-ment for defendants, and plaintiff brings error.

Affirmed.

The Reliance Realty Company, Inc., brought suit against E. B. Mitchell and H. S. Redding for the balance of the purchase money of certain lots situated in a Florida subdivision. The court sustained a general demurrer and dismissed the petition, and the plaintiff excepted.

The suit was based upon several written contracts between the plaintiff as party of the the first part and the defendants as party of the second part, wherein the plaintiff agreed to sell and the defendants agreed to buy the lots in question at prices named and upon terms stipulated. The defendants made a cash payment upon each lot at the time of executing the agreements, and the remainder was to be paid in installments at times specified. All installments were due before the suit was filed. Each of the contracts, copies of which were attached to the petition, contained provisions as follows: (1) That, if the said parties of the second part shall first make the payments and perform the covenants herein mentioned on their part to be made and performed, the said party of the first part hereby covenants and agrees to convey and assure to said parties of the second part, in fee simple, clear of all incumbrances whatever, by a good and sufficient deed, the tract of land sold. (2) That in the event of default in the payment of any of the installments the contract, at the option of the first party, will be forfeited and terminated, and that in such case the first party may retain all payments made as for rent and use of the premises to the date of cancellation; and also that the first party shall have the right to re-enter and take possession of the premises without being liable to any action therefor. (3) It is understood and agreed that all streets shall be rocked to a width of twenty-four feet and cement sidewalks be made along street frontage of all lots and shrubbery, to be placed as deemed advisable by said first party. (4) Restrictions as to buildings and use of premises.

Each contract recited that the party of the first part was a corporation existing under the laws of the state of Florida, and that the parties of the second part were residents of the city of Waycross, Ga. Except as indicated above, there was nothing to show where the contracts were executed or where they were to be performed.

The petition alleged the making of the contracts; set out the balance due for the purchase money, and averred that the defendants "failed" to pay such indebtedness or any part thereof, although the same was past due. The original petition contained no tender of conveyance, nor any allegation of performance by the plaintiff, but by amendment it is alleged that the petitioner is able and willing to make title to the defendants to the property sold "on recovery of judgment and the satisfaction of the same by the defendants."

Grounds of the demurrer were as follows: (1) There is no allegation which would authorize a recovery under the law. (2) The petition sets up no cause of action against the defendants. (3) The petition does not allege that the plaintiff has performed its part of the contracts sued on.

Herbert W. Wilson and Leon A. Wilson, both of Waycross, and Harry M. Wilson, of Savannah, for plaintiff in error.

E. O. Blalock, of Waycross, for defendants in error.

BELL, J. (after stating the foregoing facts).

While it is true that, if the writings sued on in the instant case should be treated as Florida contracts, the laws of Florida should govern in determining the validity and effect of the agreements, yet, since no law of that state has been pleaded, the contracts are to be interpreted by the applicable principles of law of force in this state. Civil Code 1910, § 8; Massachusetts Benefit Life Ass'n v. Robinson, 104 Ga. 256 (8), 30 S. E. 918, 42 L. R. A. 261; Bailey v. Devine, 123 Ga. 653 (1), 51 S. E. 603, 107 Am. St. Rep. 153; Post v. Atlantic Coast Line R. Co., 138 Ga. 763 (5), 76 S. E. 45; Slaton v. Hall, 168 Ga. 710 (1), 148 S. E. 741.

The conclusion just stated will hold true irrespective of whether there exists a presumption that the common law is the prevailing law of the state of Florida. If this is not the presumption to be indulged (Florida not being of the territory of the original Colonies), then it must be presumed that the applicable law of such foreign state is identical with the lex fori; and. since Georgia is a common-law state, it follows that, whether we apply the one or the other of these presumptions, we reach the same result, which is that, in the absence of anything to show what is the law of Florida, the contracts will be construed and enforced by the laws applicable thereto which are of force in the state of Georgia. See, in this connection, Minor's Conflict of Laws, pp. 531, 533. We would apply the same law, of course, if the contracts were intended to be performed in the state of Georgia. In these circumstances, it is unnecessary to determine in which of the two states the contracts were intended to be performed, or whether the laws of the one state rather than the laws of the other should be applied in the construction of the agreements.

In an executory contract for the purchase and sale of land, where it was agreed that the purchase money should be paid inspecified installments and that, if the purchasers should "first make the payments" undertaken by them, the seller would convey and assure to them "in fee simple, clear of all incumbrances whatever, by a good and sufficient deed, " the tract of land sold, the covenants of the purchasers as to paying the several installments of the purchase money except as to the last one might have been independent of the seller's covenant with regard to making title, if they had been enforced as made; but, where the seller took no action to recover the several installments as they became due, and allowed all installments to mature before bringing suit therefor, and where in the suit then brought for the entire purchase money it does not appear that the defendants had entered into possession of the land, although they might have done so under the contract, such respective covenants of the parties must then be construed as dependent, and the plaintiff seller, in order to recover the purchase price, should offer performance upon its part in accordance with the terms of the contract. The stipulation that the purchasers should "first make the payments" was evidently intended to have reference only to installments other than the last one; while as to such final installment the parties must have contemplated that the payment by the purchasers and the conveyance by the seller were to be performed dependently and concurrently. Morris v. McKee, 96 Ga. 611 (2), 24 S. E. 142; Chastain v. Piatt, 166 Ga. 307 (1), 143 S. E. 378; Brenard Mfg. Co. v. Kingston Supply Co., 22 Ga. App. 280 (1), 95 S. E. 1028; Crim v. Southern Realty & Trust Co., 38 Ga. App. 502, 144 S. E. 342, 343; Beecher v. Conradt, 13 N. Y. 108, 64 Am. Dec. 535; Hogan v. Kyle, 7 Wash. 595, 35 P. 399, 38 Am. St. Rep. 910; Smith v. Henry, 2 Eng. (7 Ark.) 207, 44 Am. Dec. 540; Runkle v. Johnson, 30 Ill. 328, 83 Am. Dec. 191; Boone v. Templeman, 158 Cal. 290, 110 P. 947, 139 Am. St. Rep. 126; Robinson v. Harbour, 42 Miss. 795, 97 Am. Dec. 501, 2 Am. Rep. 671; Bean v. Atwater, 4 Conn. 3, 10 Am. Dec. 91; Shinn v. Roberts, 20 N. J. Law, 435, 43 Am. Dec. 636; Bank of Columbia v. Hagner, 1 Pet. 455, 7 L. Ed. 219; 27 R. C. L. 454.

In view of the special terms of the agreement under consideration, the above ruling is not...