Willingham Loan & Trust Co. v. Moore , 160 Ga. 550 ( 1925 )

Beck, P. J.

(After stating the foregoing facts.) This same contract has already once been before this court in the case of Moore v. Adams, 153 Ga. 709 (113 S. E. 383). The plaintiff in that case was Elton M. Adams, the petition brought by him for specific performance of the contract alleging that Willingham Loan & Trust Company acted for him and as his authorized sales agent in executing the receipt and contract, and that he was the undisclosed principal for whom the Willingham company acted in the transaction. In that case the Supreme Court held, that, as Adams was not disclosed as a party to the contract, suit could not be maintained in his name. The contract was not considered; and therefore the case of Adams v. Moore does not have any bearing whatever on the present suit, which is brought by Willingham Loan & Trust Company.

We are of the opinion that the position taken by the defendant in the court below, based on the contention that the contract was not a legal, binding, and enforceable contract, was not supported by evidence of such a character as to authorize the court to direct a verdict in favor of the defendant. In passing upon the question as to whether or not the court erred in directing a verdict in favor of the defendant, all the evidence in favor of the plaintiff must be taken as true; that is, for the purpose -of deciding that question. The mere fact that Willingham Loan & Trust Company was not the owner of the property contracted to be sold and did not have title thereto, and was not vested at the time of sale with any legal right to compel the owner of the property to convey in accordance with the terms of vendor’s contract, does not, in view of other testimony in this case, render the contract unenforceable. Conceding that under the contract as it stands written, without explanation and without the proof of additional facts, Moore would have had the right to insist upon a conveyance from the Willingham Company, it is shown by the evidence for the plaintiff that when a deed, executed by the real owner of the property, Adams, was tendered to Moore and demand was made upon him for performance on his part of the contract according to the terms thereof, Moore objected to the deed which was tendered, not upon the ground that he was entitled to a deed from the Willingham Company, who signed the contract, but upon the ground that there were defects in Adams’ title; and he stated, moreover, that he didn’t care to invest in any property in Macon. Insisting that there were defects in the title, defendant told the vendor or his agents that they must see his attorney at law, naming him; and the vendors and their counsel did go to the attorney at law of the purchaser, who was in charge of investigating the matter and deciding whether or not the title was good; and the attorney of the purchaser based his objection to the deed tendered, not upon the ground that it was not executed by the Willingham Loan & Trust Company, but upon the ground that Adams, the grantor in the deed which was tendered, did not have satisfactory title. Where the purchaser thus insists upon a defect in the title of the party who actually executed and tendered a deed to him, without mentioning or referring to any right to or desire for a deed executed by the Willingham Company, or any preference for such a deed, he can not, after suit is brought for specific performance, in defense thereto urge additional -objections which were known to him when the specific objections were made. In the ease of Cowdery v. Greenlee, 126 Ga. 786 (55 S. E. 918, 8 L. R. A. (N. S.) 137), it was held: “After a prospective purchaser of land under an executory contract of sale has pointed out his objections to the title and has declined to perform, for specific reasons assigned, he can not, in defense to a suit for damages for a breach of the contract, urge additional objections to the title which the owner was given no opportunity to meet, and which were known to such purchaser at the time the specific objections were made.”

But it is also essential to decide, in passing upon the question as to whether or not the court was authorized to direct a verdict in favor of the defendant, whether Adams, the grantor named in the deed tendered, had such title to the property as would enable him to make good and sufficient title to the purchaser. It does appear from the evidence that the owner did not have perfect paper title; and if the contract had called for perfect, recorded paper title, there was such a defect as would have authorized the court to hold that the purchaser was not bound to accept it. But the contract does not call for perfect title of record; and we are of the opinion that if the vendor tendered good and sufficient marketable title, that of itself would put him in a position to insist upon specific performance on the part of the purchaser. “If the vendor expressly agrees to furnish the purchaser with a perfect chain of title or a title of record, his agreement is not complied with if such title is not furnished, though his title may have been perfected by adverse possession and the lapse of time, since a good documentary title or title of record is of a higher character and more desirable than one dependent on extrinsic circumstances to be established by parol evidence. There are also cases which hold that a purchaser is not required to accept a title based on adverse possession which must necessarily be established by parol proof. On the other hand, the rule prevails in most jurisdictions, where a paper title or title of record is not expressly contracted for, that a title depending on the bar of the statute of limitations may be a marketable title, provided it clearly appears that the entry of the real owner is barred.” 27 R. C. L. 502, § 225. And we are of the opinion that the rule stated as prevailing in most jurisdictions is sound. See, in this connection, the cases cited supporting the text. “While a purchaser can not be compelled to take a doubtful title, he will not be permitted to object to a title on account of a bare possibility that it will prove defective. An objection to a title should have some.merit in order to defeat the claim of the vendor to the specific performance of the contract of sale. It is not enough that the purchaser should have an honest doubt as to its sufficiency. It is only in cases where the court itself is in doubt as to-the title that a specific execution will be refused on the ground that the title is not marketable. But though the court may entertain an opinion in favor of the title, if it is satisfied that that opinion may fairly and reasonably be questioned, it will refuse specific performance. The standard test of the sufficiency of the title is its marketability.” 25 R. C. L. 275, § 76.

'In.the case of Cowdery v. Greenlee, supra, it was said: “The purchaser did uot stipulate in the written agreement that she was to’ get a perfect record title. On the contrary, she agreed to buy subject only to the condition that she should have the right to investigate the title and decline to perform if the vendor’s title was found to be ‘legally insufficient’ and she should fail to perfect it within a reasonable time. ‘A promise to convey a good title is always implied in an executory contract for the sale of lands, and a purchaser is never bound to accept a defective title, unless he expressly stipulates to take srieh title knowing its defects.’ 26 Am. & Eng. Ene. L. (2d ed.) 106. ‘But while a defe'ct in the record title may, under certain circumstances, furnish a defense to the purchaser, there is no inflexible rule that a vendor must furnish a perfect record or paper title.’ Id. 107. A title dependent upon adverse possession under color of title is generally held sufficient, if there be no reasonable doubt as to the nature and duration of such possession and the title thereby acquired. Id. ‘The nature of the title which a vendor must be qualified to convey where a good title is implied or contracted for is frequently described as a “marketable” title, or one free from’reasonable doubt; that is, not only a title valid in fact, but one that can be again sold to a reasonable purchaser or mortgaged to a person of reasonable prudence. . . But while a purchaser will not be compelled to take a doubtful title, the doubt must be more than a bare possibility; it must be a reasonable doubt.’ ” If there was a question, under the evidence in this case, as to whether prescriptive title, or title acquired by adverse possession, measured up to the test of sufficiency, — that is, whether it was a good and-marketable title, that question should have been left to the jury. There was evidence- also that a third party had a mortgage on the property. Before the plaintiffs would be entitled to recover, it would be necessary for them to show 'that the encumbrance has been removed, or that the lienor has released the lien upon the property, or the court may decree so as to provide for the removal of that lien before the purchaser shall be compelled to pay any of the purchase-money. That can be done, as the outstanding mortgage is for a less amount than the purchase-money.

. The question is also raised in the brief as to the sufficiency of the description of the property in the contract of sale. It is insisted that “the contract calls for the Adams property located on Broadway and occupied by certain concerns,”'and it is argued that this description of the property is not sufficient in law to be made the basis for specific performance. This criticism of the contract is without merit. The contract is headed, “Macon, Georgia,” and in the absence of proof to the contrary it will be implied that the property is located in that city. Bush v. Black, 142 Ga. 157 (82 S. E. 530).

We are of the opinion that the issues made under the pleadings and evidence should have been submitted to the jury, and that it was error to direct a verdict in favor of the defendant.

Judgment reversed.

All the Justices concur, except Gilbert, J., absent for providential ccmse.