Newton v. Bowen , 146 Ga. 524 ( 1917 )

Fish, O. J.

1. “The maker of promissory notes given for the purchase of land of which such maker holds undisturbed possession under a bond from the vendor, conditioned to make to the former a good and suffi•cient title to. the land upon payment of the notes, can neither voluntarily rescind the contract of purchase nor defeat the collection of the notes, upon the ground that the vendor has not in fact a good title to the land in question, without showing clearly that there is a paramount outstanding title against the vendor, and also proving fraud upon his part, or that he is insolvent, or a non-resident, or else proving other facts which would authorize equitable interference with the carrying out of the contract as made.” Black v. Walker, 98 Ga. 31 (26 S. E. 477). This ruling has been frequently followed by this court, including, among others, the late case of Henderson v. Fields, 143 Ga. 547 (85 S. E. 741).

2. Applying the principle announced in the preceding note, the petition as originally drafted failed to set out a cause of action; and the proffered amendment, if allowed, would not have cured its fatal defects. Accordingly, it was not error to reject the offered amendment and to dismiss the case on general demurrer.

Judgment affirmed.

'All the Justices concur.

Equitable petition. Before Judge Sheppard. Effingham superior court. October 18, 1915.

Paul E. Seabrook; for plaintiff. II. B. Strange, for defendants.