Davis v. Brittain Bros. , 168 Ga. 718 ( 1929 )

Gilbert, J.

1. When the case was formerly before this court, it was ruled: “In an action to rescind and cancel a contract to purchase land, and to recover a part payment on the price, on the ground of fraud in misrepresenting the title, held, that it was not error to overrule a general demurrer to the petition, and that a special demurrer was sufficiently met by amendment.” Brittain Brothers Co. v. Davis, 167 Ga. 159 (144 S. E. 904).

2. The allegation in the petition of fraud in misrepresenting the title was supported by evidence.

3. The case of Henderson v. Fields, 143 Ga. 547 (85 S. E. 741), and other cases like it, were considered in making the former decision. In those cases this court applied the rule that a purchaser of land, who is in undisputed possession under his vendor’s bond to make or cause to be made good and sufficient title on payment of the purchase-money, can not recover from the vendor partial payment made on the purchase-price solely on the ground of defect in the vendor’s title. In this case the right of rescission is the controlling question. Recovery of the ' partial payment is incidental and dependent upon rescission.

No. 7078. June 12, 1929. Rehearing denied July 12, 1929. Porter & Mebane for plaintiff. Wright, Wright & Covington, for defendant.

4. The court erred in directing a verdict.

Judgment reversed.

All the Justices concur.