La Rowe v. McGee

• Decision Date: 16 January 1931
• Docket Number: 8088.
• Citation: 156 S.E. 591,171 Ga. 771
• Parties: LA ROWE v. McGEE.
• Court: Georgia Supreme Court

156 S.E. 591

171 Ga. 771

LA ROWE v. McGEE.

No. 8088.

Supreme Court of Georgia

January 16, 1931

Syllabus by the Court.

Charge that sale of land was unenforceable if vendor leased sand pit to third party held erroneous as unauthorized by evidence of indefinite oral lease (Civ. Code 1910, § 3617).

The court erred in instructing the jury that, if the vendor had leased to a third party the sand pit, so that the vendee could not obtain possession, the sale could not be enforced. There being no evidence authorizing submission of the issue it was error for the court to charge on the subject of such a contract.

Evidence held insufficient to support plea of drunkenness when purchasing land under contract sought to be specifically enforced (Civ. Code 1910, § 4239).

The evidence admitted to support the plea of drunkenness did not demand the verdict.

It was error to refuse a new trial.

Error from Superior Court, Fulton County; E. D. Thomas, Judge.

Suit by J. S. La Rowe against B. C. McGee. Judgment for defendant plaintiff's motion for new trial was overruled, and plaintiff brings error.

Reversed.

Alvin L. Richards, of Atlanta, for plaintiff in error.

Walter A. Sims and Jos. E. Berman, both of Atlanta, for defendant in error.

GILBERT J.

La Rowe, the owner of a tract of land in Fulton county subdivided it and sold two parcels at auction, on August 23, 1928, to McGee. The purchaser paid one-fourth of the purchase price and signed an agreement to pay the balance in three equal annual installments. At the time of the sale, announcement was made that all papers necessary to complete the transaction would be prepared by an attorney named, and the purchaser was directed to go to the office of this attorney for the purpose of getting his deeds and completing the transaction. La Rowe executed and left with that attorney warranty deeds conveying the two parcels of land to McGee; and the attorney prepared notes covering the deferred payments, with deeds securing the same. McGee never called at the office of this attorney, but, after waiting several weeks, employed an attorney who wrote to the auctioneers and to La Rowe directly, demanding the return of the cash payments made by McGee, stating that he had endeavored to take possession of the property and found a man named McDonald hauling sand from the pit thereon, that McDonald claimed to hold a lease on the sand pit, and therefore that McGee declined to close his trade. La Rowe instituted against McGee two suits seeking specific performance of the contracts of sale. They were consolidated, and the defendant pleaded as to both that McDonald held a lease covering the sand bed on the property, that for this reason he refused to carry out the trade, and he prayed for judgment against plaintiff for the amount of the cash payments. Upon the trial the alleged lease was not introduced in evidence. During the trial, a witness for the defendant testified that he held a lease on the sand pit during the year 1930, and that the lease was signed by D. W. De Vore. The case having been submitted to a jury, verdict for the amount of the cash payments plus interest was returned in favor of the defendant. Motion for new trial filed by plaintiff having been overruled, he excepted.

1. The sole special ground for a new trial complains that the court instructed the jury as follows: "One of these contentions is, gentlemen, that the plaintiff leased a portion of the particular land involved in this case or this cause of action to a third person for the year 1930, the present year, and surrendered possession thereof to this third person, and therefore is unable at this time to deliver possession to the defendant in this case, in the event the jury should find that the plaintiff is entitled to specific performance. The plaintiff, gentlemen, denies this contention of the defendant. The plaintiff says that he, through his attorney, Mr. Richards, did rent a house and several acres of land on an adjoining place or tract of land, that is, on land adjoining the land which is the subject-matter of this suit, to a third person to operate his truck-farm on. and did not rent any of the land described in the plaintiff's petition to any one, or authorize any one to rent the same for him. I charge you that if you find that the plaintiff has rented and delivered possession of the particular land described in the plaintiff's petition, or any portion thereof, and especially the sand-pit, to a third person, then the plaintiff would not be entitled to recover, because he could not possibly be in a position to deliver possession of the property to the defendant in the event the jury should find the plaintiff is entitled to a decree of specific performance. On the other hand, if you find the plaintiff did not rent any portion of the land described in this suit, that is to say, particularly the sand-pit or bed, or authorize any one to rent the same for him, then the mere fact that you may believe from the evidence that some third person who had leased or rented some other portion of plaintiff's land, or undertook, without authority from plaintiff, to sublet the sand-pit or the particular land described in this suit to another person, and that this other person is now in possession of the sand-pit, this would not prevent a recovery in favor of the plaintiff, because the possession of the sand-pit by some other person, under the circumstances just outlined, would be an unlawful possession." The criticism is that there is no evidence that the property sold to defendant had been leased for the year 1930, and no evidence to show that it had been leased to any one, and because the plaintiff had the right to rent the property during the pendency of the suit, and to account to the defendant for what he received. On the trial there was parol evidence to the effect that a named third person had what was called a "lease on the sand pit" in question; that the lease was in writing; that it extended for a period of seven months, for a monthly payment of $10. It also appeared that this "lease" was made by persons claiming to represent the vendor as real estate agents.

S. W. Carson, a witness for defendant, testified: "I signed the lease contract which you exhibit to me, with Mr. McDonald and Mr. Williams. *** At that time I understand that J. S. LaRowe owned the property under a foreclosure. I rented the property to Mr. J. T. McDonald and Mr. Williams. As to whether or not I had a sign on the sand-bed, I did not. We have always handled Mr. LaRowe's business--Clifton, my boy, and I. We were authorized to attend to anything for him that he had, as we would ourselves; and I thought that was a good trade for him, $10 a month, seven months. *** As to whether or not I wrote Mr. LaRowe and told him that I had rented the sand bed for $10 a month I don't know, but I had perfect authority to do what I did there. Mr. Adams was the bookkeeper. I do not know whether the authority was in writing or not. If I have written authority, it ought to be with all my papers, which are in the bankrupt court. *** As to whether or not Mr. LaRowe knew that I had leased the sand-bed--I think so, without a doubt. As to whether or not he objected to it, I never heard any criticism of it." It was not contended that La Rowe, the vendor, had himself executed a lease of the property to any one, or that he had expressly authorized any one else to lease the sand pit; and no such authority was in writing.

Sand in a general sense, is a mineral. 18 Ruling Case Law, 1093, § 3. The Civil Code 1910, § 3617, provides: "Realty or real estate includes all lands and the buildings thereon, and all...