Roberts v. Groover

• Decision Date: 11 September 1923
• Docket Number: 3509.
• Citation: 119 S.E. 696,156 Ga. 386
• Parties: ROBERTS v. GROOVER ET AL.
• Court: Georgia Supreme Court

119 S.E. 696

156 Ga. 386

ROBERTS v. GROOVER ET AL.

No. 3509.

Supreme Court of Georgia

September 11, 1923

Syllabus by the Court.

An obligation to sell to a named vendee "454.25 acres of lot No. 436 and 75.25 acres of lot 435, all in the twelfth land district of Brooks county, Georgia," is a sale of land by the acre, which embraces a covenant of warranty to convey the exact number of acres and fractions of acres specified in the bond for title, or else make good the deficiency in acreage by an abatement of such a proportionate part of the purchase price as the value of the shortage in acres bears to the value of the total number of acres which the vendors agreed and undertook to convey, or to a rescission at the option of the holder of the bond.

The ruling in this case is controlled by the decision in Strickland v. Hutchinson, 123 Ga. 396, 51 S.E. 348. The proper solution of the question whether a sale of land is by the tract or by the acre depends upon whether the quantity of land is of the essence of the contract. If, after a description of a tract of land which otherwise identifies the premises either by metes and bounds or by monuments, there appears a statement of the quantity of the land as so many acres more or less, such a sale would be a sale by the tract but where in a conveyance the usual reference to the land as "all that tract or parcel of land," etc., or "a tract of land," is omitted, and the first statement as to the land is a covenant to sell a definite and exact number of acres of land, neither more nor less, the description thereafter following not stating any metes or bounds, it must be adjudged that the quantity of land being first mentioned in the bond for title is of the essence of the contract.

Such a sale of land as above stated is a sale by the acre, and the fact that (for the purpose of identification and admeasurement of the exact number of acres so definitely fixed and specified) it is necessary to give further description such as the names of adjacent landowners and the name of a former owner will not transform the contract into a sale of land by the tract, where the exact number of acres of land has previously been fixed in the outset of the contract of sale. A description of the land which merely enables one to find and measure the number of acres precisely defined and fixed by the contract cannot defeat the covenant to sell an exact number of acres.

Error from Superior Court, Brooks County; W. E. Thomas, Judge.

Action by W. W. Roberts, Jr., against Denmark Groover and others. Judgment for defendants and plaintiff brings error. Reversed.

Where a land contract covered a stated number of acres, that the names of adjacent landowners and of a former owner were given did not transform the contract into a sale by the tract instead of by the acre; a description merely enabling one to find and measure the number of acres fixed by the contract not defeating the covenant to sell an exact number of acres.

The plaintiff brought a petition seeking to have rescinded and declared void certain notes that he had given to the defendants, and to enjoin the prosecution of a suit previously filed by the defendants in the city court of Quitman, and to have canceled a bond for title given to the plaintiff by the defendants in pursuance of an attempted sale between the parties. The exact wording of the bond for title as relates to the description of the property, was:

"To all the following described land, to wit: 454.25 acres of lot No. 436 and 75.25 acres of lot 435, all in the 12th land district of Brooks county, Georgia, being bound on the north by the Quitman and Grooverville public road, east by lands of Tom Harrell and B. R. Strickland, south by original lot line of lot No. 436 and west by J. R. Richardson. A plat of said land, made by Zeno Hutchinson, county surveyor, on August 14, 1919, will be attached to the deed when same is executed by obligors to obligee. The above-described land is known as the Dekle place, and is the place where H. E. Dekle resided for years."

Plaintiff had executed notes to the amount of $15,220, and had paid $5,000 on the day that the bond for title was delivered, and afterwards paid defendants $2,000. The defendants had sued the plaintiff in the city court of Quitman on one of the notes which had been given for the deferred payments of the land. This was the suit sought to be enjoined. The plaintiff prayed for a judgment against the defendants for the $7,000 that he had paid them, basing this prayer, as well as the prayer for cancellation and rescission, upon allegations, in substance, that there was a shortage in the number of acres of the property referred to in the bond for title, and that there was an absence of title on the part of the defendants to a part of the land referred to in the bond, and on account of various statements and representations which the plaintiff described as fraudulent, in that nut grass existed on the property, and on account of the absence of an all-year running branch through the place, and on account of misrepresentations as to acreage and boundaries.

To this petition the defendants filed demurrers, both general and special, setting up that the petition does not set forth any cause for equitable relief; that the plaintiff has an adequate remedy at law; that there is no allegation that the defendants are insolvent, nor is it alleged that the plaintiff has been ousted of possession, nor that the defendants practiced any fraud to prevent an inspection of the property by the plaintiff, nor that the property is of less value by reason of plaintiff's contention that it was at the time of purchase and sale, nor that the purchaser was deprived of the opportunity of inspecting the land for himself by any fraudulent act of the defendants; and for the further reason that such things as the soil or springs on land are open for inspection, and the purchaser is willfully negligent if he fails to look and see for himself, and neither law nor equity will relieve him from his own want of diligence. The defendants moved to strike paragraph 13 of the petition, on the ground that no sufficient reason is assigned why petitioner should repose confidence and trust in the defendants, and the allegations of said paragraph do not show such confidential relations as to amount to a fraud on the part of the defendants. They moved to strike paragraph 15, on the ground that the same is not a sufficient allegation of the insolvency of the defendants. The demurrer was--

"sustained upon each and all of the grounds therein stated, particularly upon the ground that the bond for title attached to plaintiff's petition is construed by this court to be a sale by the tract and not by the acre."

To this order the plaintiff excepted.

Beck P.J., dissenting.

John E. Morris, Jr., and Branch & Snow, all of Quitman, and John T. Norris, of Cartersville, for plaintiff in error.

Bennet & Harrell, of Quitman, for defendants in error.

RUSSELL, C.J. (after stating the facts as above).

In this case Roberts bought land from Groover and Strickland, taking the bond for title which is set forth in the statement of facts, and paying therefor the sum of $5,000 in cash, and giving two notes for $5,000 and one for $5,220 for the unpaid portion of the purchase price. Groover and Strickland brought suit in the city court of Quitman for $3,000, the unpaid balance on the first note, and Roberts filed the pending equitable petition, asking that the contract of purchase be rescinded, and that the suit in the city court be in the meantime enjoined. Upon an interlocutory hearing on September 24, 1921, the judge refused the injunction prayed for. The case was brought to this court upon this ruling and it was held:

"The evidence submitted at the interlocutory hearing being conflicting upon the controlling issue, the judgment of the court at such hearing, denying the injunction, will not be disturbed here." Roberts v. Strickland, 153 Ga. 529, 112 S.E. 560.

In that case Groover and Strickland were--

"restrained and enjoined from selling, alienating, hypothecating, or otherwise disposing of the notes (other than the one sued on in the city court of Quitman, Ga.) heretofore made to them by the plaintiff, W. W. Roberts Jr., until the further order of this court; the restraining order heretofore entered relative to the suit in the city court of Quitman, Ga., by above defendants against above plaintiff, is hereby vacated, and said defendants are permitted to proceed with the prosecution of that suit in the city court of Quitman, Ga., irrespective of the existence of this litigation herein."

Upon the return of the remittitur the case was called for trial, and after the allowance of an amendment offered by the plaintiff, and after argument upon the demurrers, the judge passed the order set forth in the statement of facts and dismissed the plaintiff's petition.

The amendment referred to was filed on November 8, 1922, and alleged; that the bond for title contained no boundary for six-sevenths of the area on the east side of the acreage sought to be purchased by the plaintiff from the defendants that, although the bond for title attempted to described an eastern boundary for the acreage in dispute, in point of fact the said eastern boundary referred entirely and only to the 75.25 acres of lot 435 as specified in the bond, and did not refer or attempt to refer to any eastern boundary for the much larger acreage sought to be conveyed as part of land lot number 436; that there are only 420.47 acres in the west half of lot No. 436, which, in accordance with the bond for title, is bounded on the west by J. R. Richardson; that the bond referred to the west part of lot 436, and the defendants were not in a...