Taliaferro v. Smiley Et Ux

• Decision Date: 29 October 1900
• Citation: 112 Ga. 62,37 S.E. 106
• Parties: TALIAFERRO. v. SMILEY et ux.
• Court: Georgia Supreme Court

112 Ga. 62

37 S.E. 106

TALIAFERRO.

v.SMILEY et ux.

Supreme Court of Georgia.

Oct. 29, 1900.

APPEAL-BILL OF EXCEPTIONS—SALE OF LAND —BREACH OF CONTRACT—PETITION.

1. When a bill of exceptions affirmatively recites that it is tendered within 30 days after the adjournment of the term of the court at which the judgment excepted to was rendered, and the trial judge certifies such bill of exceptions in terms of the statute, it will be assumed here that it was tendered in due time.

2. The petition in the present case, though somewhat loosely drawn both as to allegations and prayer, substantially sets forth the breach of a contract for the sale of land, and prays for the recovery of the damages alleged to have resulted from such breach. It was good, there fore, as against a general demurrer.

3. The petition in an action for the breach of a contract for the sale of land is not demurrable because it fails to allege that such contract was in writing.

4. The petition was not demurrable for want of necessary parties.

(Syllabus by the Court.)

Error from superior court, Gordon county; A. W. Fite, Judge.

Action by John Taliaferro against T. M. Smiley and wife. Judgment for defendants, and plaintiff brings error. Reversed.

The petition of John Taliaferro, in an action against T. M. Smiley and his wife, Ella W. Smiley, alleged, in substance, that to secure a loan of $1,290 he conveyed to the Equitable Mortgage Company certain land, and, being unable to pay such debt, just before its maturity he conveyed said land, together with other land, to David C. Barton, with the understanding that Barton was to assume and pay petitioner's debt to the mortgage company, and pay him $1,000 for a designated portion of the land that petitioner conveyed to him, and, when the debt to the mortgage company should be paid, to reconvey to petitioner all the land except that for which he was to receive the $1,000, —Barton to have possession of all the land, and to receive the rents and profits thereof, till the debt to the mortgage company should be paid; that, in pursuance of such agreement, Barton executed to petitioner a bond to reconvey to him, when the debt due the mortgage company should be paid, all the land except that designated portion for which he was to receive $1,000; that Barton borrowed from the Security Investment Company $1,500, and, to secure the payment of the same, executed to such company a deed to all the land petitioner had conveyed to him as aforesaid, paid the debt petitioner owed to the Equitable Mortgage Company, and had the security deed that petitioner had made to the mortgage company canceled of record; that the land conveyed to Barton by petitioner was worth $3,000, and that Barton had never paid anything for the same, except petitioner's debt to the mortgage company; that Barton, being unable to pay the debt to the Security Investment Company, requested petitioner to make such disposition of all the lands petitioner had conveyed to him as petitioner should deem best for his own interest; that thereupon petitioner entered into negotiations with T. M. Smiley for the sale of all of said land, and "petitioner and the said Smiley agreed upon the terms of the purchase price of said lands, whereby the said Smiley was to pay off the debt due the Security Investment Company for the sum of $1,500 against said Barton, and to pay petitioner the sum of $1,000 for his interest in said lot No. 8; that after said contract of sale by petitioner to the said Smiley, and with notice of petitioner's interest and equity in said lands, and without the knowledge or consent of petitioner, and In violation of contract of purchase made with petitioner, the said Smiley purchased from said D. C. Barton, " for the sum of $1,500, all the land petitioner had conveyed to him, and, to avoid liability to petitioner, had Barton to convey the land to Ella W. Smiley, wife of T. M. Smiley; "that said lot No. 7 is worth $2,000, and after the paying off of the claim of $1,500 due to the Security Investment Company out of the lands * * * bought from said Barton, estimating the lands sold by your petitioner to Barton at the price for which he was to pay for same, at $1,000, that the said Smiley would be justly due petitioner, for which sum he sues, he having paid nothing for said lands"; that the trade between Barton and Smiley for the lands was made for the purpose of defrauding petitioner of his interest therein, and Mrs. Smiley knew of this purpose. The prayer for judgment was as follows: "Wherefore your petitioner prays judgment against the said T. M. Smiley and Ella W. Smiley for the sum of $1,500, they being indebted to him for the reasons herein set forth, and that it be decreed that your petitioner have a special lien upon lot of land No. 7 for the payment of said sum, as well as a general lien upon all of the property of the said T. M. and Ella W. Smiley." The defendants...