Roughton v. Rawlings

• Decision Date: 01 October 1892
• Citation: 16 S.E. 89,88 Ga. 819
• Parties: ROUGHTON. v. RAWLINGS.
• Court: Georgia Supreme Court

16 S.E. 89

88 Ga. 819

ROUGHTON.

v.RAWLINGS.

Supreme Court of Georgia.

Oct. 1, 1892.

Agreement to Purchase Land at Executor's Sale — Specific Performance — Statute of Frauds.

Where two persons, not stipulating that either shall not bid, agree verbally, without reducing the agreement to writing, that one or the other of them shall bid off at an executor's sale about to take place at auction a tract of land adjoining the premises of each of the parties respectively, and that the tract shall then he divided equally between them, each taking the half adjoining his own premises, the agreement is within the statute of frauds, (Code, § 1950,) and is not, on the doctrine of trust, or on the ground of fraud and part performance, enforceable at the instance of the other against the party who bid off the property, and who, after paying his own money in full compliance with his bid, takes a conveyance from the executor to himself alone.

(Syllabus by the Court.)

Error from superior court, Washington county; J. S. Boynton, Judge.

Action by C. G. Rawlings against B. E. Roughton. Judgment for plaintiff. Defendant brings error. Reversed.

B. D. Evans, Jr., and Richd. I. Harris, for plaintiff in error.

Hines & Felder and T. H. Potter, for defendant in error.

Bleckley, C. J. The plaintiff has parted with nothing which he possessed or owned before. He has the same amount of money and property, and ha3 rendered no service, nor caused any to be rendered. What he has missed by reason of the defendant's refusal to perform the verbal agreement is only the gain which he would have derived from the perform ance if the defendant had not violated his promise. The mere right to bid for the property at the executor's sale was not itself property, nor the subject-matter of bargain and sale. The nonexercise of that right by forbearing to bid was therefore not a consideration for the agreement which will take the case out of the statute of frauds by reason of part performance. According to the amended declaration, that right was not parted with by any stipulation in the agreement. Had he refused to perform, and had the other party asserted his right to have a specific performance, it might be that the latter, having changed his condition on the faith of the agreement, and incumbered himself by the purchase with more property than he wanted, could allege this fact as a part performance, and on that ground successfully prosecute a suit. But, as to the plaintiff, there is no such substantial change in his condition as will render it. an actionable fraud upon him for the defendant to retain all the fruits of his purchase. The plaintiff simply misses the benefits of a parol agreement, just as did one of the parties in Graham v. Theis, 47 Ga. 479. By the Code, (section 1950,) any contract for the sale of...