Sturdivant v. Walker

• Decision Date: 10 July 1947
• Docket Number: No. 15881.,15881.
• Citation: 43 S.E.2d 527
• Parties: STURDIVANT. v. WALKER et al.
• Court: Georgia Supreme Court

43 S.E.2d 527

STURDIVANT.

v.WALKER et al.

No. 15881.

Supreme Court of Georgia.

July 10, 1947.

Rehearing Denied July 22, 1947.

Error from Superior Court, Fulton County; Walter C. Hendrix, Judge

Suit by A. G. Sturdivant against Earl B. Walker and another for specific performance of contract for sale of realty. To review a judgment sustaining general demurrers to the petition, the plaintiff brings error.

Affirmed.

A. G. Sturdivant brought suit for specific performance of the following written sales agreement. "March 2, 1943. I, E. B. Walker, do hereby agree to sell to A. G. Sturdivant house and lot known Jus 1265 Campbellton Road, Fulton County, Georgia, for the sum of one hundred and fifty dollars. Ten dollars hereby received as (earnest) money to be applied on said one hundred and fifty dollars upon delivery of clear title, and I, A. G. Sturdivant, agree to pay balance of said one hundred and fifty dollars and assume payments of first mortgage held by Jefferson Mortgage Corporation payable at thirty-two dollars and thirty-nine cents per month and second mortgage made in favor of Newbold Development Co. as per agreement signed by E. B. Walker upon delivery of clear title. Any payments which may fall due from this date to date of delivery of clear title to be paid by A. G. Sturdivant. All expense incident to the transfer of title of above property to be prorated equally between the above parties. Accepted A. G. Sturdivant. Signed E. B. Walker." The petition fully described the premises and alleged that the purchaser had been put in possession thereof. With respect to the first mortgage mentioned in the above sales agreement the petition shows as follows: "Petitioner upon the purchase of said property on March 2, 1943, went to the office of the Jefferson Mortgage Company, and had his name substituted for that of the Newbold Development Company, and all notices regarding the loan from said company or from the Investors Syndicate, which holds the loan, have been sent to him up to the present time, and he has made all the payments thereon." With respect to the second mortgage mentioned in the sales agreement, the petition shows: "That there were no payments falling due under the second mortgage which under petitioner's said contract he would have been obligated to pay, but said secondmortgage was a blanket mortgage given by the Newbold Development Co. to 'secure its creditors in the payment for building materials which they had furnished to said company, and against which company they had filed a bill for receivership, and which amount when determined was due in a lump sum upon the sale of the various properties covered by said blanket mortgage and upon the delivery of a conveyance made by said Newbold Development Co. to the respective purchasers of the various lots included in said second mortgage, which conveyances had been delivered in escrow by said company to be delivered to said respective purchasers upon payment of the amount of the purchase price thereof." The petition further alleged: "That the defendant E. B. Walker advised petitioner at the time of entering into said sale contract, that there was a controversy as to the amount due under the second mortgage and that he would advise him of the amount due thereunder at the time defendants obtained clear title to the property so that petitioner might pay the same"; that the petitioner requested the defendants to execute a deed, but the "defendants declined to do this but instead, without any notice to petitioner of their intention to do so, and without ever notifying petitioner of the amount due on said second mortgage, went to the holder of said second mortgage, and for the first time agreed to the figures which said mortgagee had at all times stated was the amount due, paid the amount thereof in the sum of $408.98, and procured the escrow deed from the Newbold Development Co. to defendants, thereby for the first time acquiring the clear title to said property, subject to said first loan, on March 23, 1946." The petition further alleged tender and its refusal; that the purchase price was reasonable; that the petitioner was ready, able, and willing to carry out the provisions of said contract, and is desirous of doing so, and extended a continuous tender of the purchase price including the amount of the second mortgage. The petition prayed for specific performance of the written agreement, and for an order temporarily restraining the defendants from alienating the...