Deich v. Reeves , 203 Ga. 596 ( 1948 )

1. For reasons hereinafter set forth in the first division of the opinion, the petition as amended, in the instant action for specific performance of a written option to purchase certain realty, was not subject to general demurrer on the ground that said option did not identify the property with the required degree of certainty.

2. The petition was not subject to special demurrer on the ground of multifariousness, in that the action was brought in one count but contained prayers for specific performance of an option to purchase, and also an alternative prayer for damages, representing the difference between the purchase-price agreed upon in said option and the reasonable market value at the time of the breach of said contract, in the event specific performance should become impossible of enforcement. Boney v. Cheshire, 147 Ga. 30 (1) (92 S.E. 636); Code, § 37-807.

3. After amendment in response to special demurrer, the allegations of the petition with respect to itemized expenditures for specific improvements, placed upon the property occupied by the plaintiff under a lease and option to purchase, are sufficiently detailed to give the defendant notice of the nature and amount of expenses incurred in placing such improvements upon the property, and therefore the trial court properly overruled renewed special demurrers calling for a still more detailed account of such expenditures.

(a) Since the demurrer, on the ground that certain of the alleged expenditures were made for improvements upon the property which might, under the terms of the lease be considered "fixtures" and thereby have required the written consent of the lessor, does not show which of the improvements should be thus classified, nor that such expenditures were made without the consent of the lessor, it fails to set forth a meritorious attack.

4. The above rulings control, adversely to the plaintiff in error, all assignments of error upon which any insistence is made.

No. 16151. MAY 13, 1948. STATEMENT OF FACTS BY JENKINS, CHIEF JUSTICE. In an action for specific performance of a written option for the purchase of certain real estate, the petition as amended alleged: The defendant Deich leased to the plaintiff Reeves a house and lot identified in the lease as "Certain premises in the State and county aforesaid, described as follows: Beach Cottage, known as 1310 Butler Ave., and located on Section 3 of Beach Lot 83, Savannah Beach, Chatham County, Georgia." On the back of said lease, under the head and title, "Special additional provisions," appears the following agreement: "An option to purchase the within described property at price of Seventeen Thousand Five Hundred and no/100 ($17,500) cash at any time prior to May 15, 1947, is hereby granted tenant." The petition describes the property thus leased by metes and bounds, and as being more fully shown on a designated map of said subdivision recorded in the Clerk's Office, Superior Court, Chatham County, Georgia, in Map Book 2, Folio 292, and it is thus made to appear that lot 3, of subdivision of Beach Lot 83 is 80 feet wide on the ocean front and 398 feet deep. The petition further alleged: that, in pursuance of said lease and option, the plaintiff, with the knowledge and consent of the defendant, entered into possession of the described cottage and said Lot 3 of subdivision of Beach Lot 83, and with the intent of purchasing the same had proceeded to convert the dwelling into a boarding house and inn for tourists, and in doing so had expended itemized sums of money for specified permanent improvements on said house and on the lot upon which it was located in the amount of $4115; and that thereafter, having elected to exercise the right of option, the full purchase-price agreed upon, which was alleged to be the fair market value of the property when leased, was tendered by the plaintiff and refused by the defendant. The prayers were for specific performance, and also "that, if the remedy of specific performance be adjudged to be inapplicable or impossible of enforcement, then damages be assessed and awarded your petitioner against defendant for breach of his contract of purchase and sale in an amount representing the difference between the purchase-price stipulated in said contract of purchase and sale, and the reasonable market value of said lot and beach cottage at the time of the breach of said contract of sale, which your petitioner alleges to be the sum of $7500." Exceptions are to the order overruling renewed general and special demurrers to the petition as amended. The ground of the defendant's general demurrer on which more particular stress is laid, is that from the terms of the option it is not clear what property was intended to be covered. This he contends is manifest for the reason that said option referring to the property described in the lease as premises known as "Beach Cottage," located on a named lot, thereby included only the dwelling built on the lot named and not the lot itself upon which it is located. The controlling question is, therefore, not whether the description in the lease is sufficiently certain to locate the premises on which the house is built, for under numerous decisions of this court the description of premises described as "Beach Cottage, known as 1310 Butler Ave.," located on Lot 3 of Beach Lot 83 in Savannah Beach, Tybee Island, Chatham County, Georgia, affords a key by which the exact location of said lot could be readily ascertained and its boundaries fixed by extrinsic evidence. King v. Brice,145 Ga. 65, 66 (1) (88 S.E. 960); Boney v. Cheshire, 147 Ga. 30 (3) (supra); Lewis v. Trimble, 151 Ga. 97 (2) (106 S.E. 101). The real question then is, whether or not the description of the property actually leased included said premises; or whether, as contended by the defendant lessor, such description referred only to the dwelling described as "Beach Cottage, known as 1310 Butler Ave.," and "located on" said lot.

Clearly the option to purchase covered the precise property which was the subject-matter of the lease, and it follows that, if the description in the lease includes the lot in question, there can then be no uncertainty as to the subject-matter of the option, and the contract would not be defective in this particular. In this connection, it must be observed and emphasized that the subject-matter of the written lease is referred to as "certain premises," which are described. While the term "premises" has varying meanings, which usually must be determined by the context, yet, when used in a lease of realty without qualifying words, it has been held by the weight of authority to mean land and buildings, lands and tenements, land and its appurtenances, etc. 33 Words Phrases, 354 et seq.; 49 C. J. 1328, § 3. It follows that, without qualifying words or other provision in the lease to restrict its meaning to land only or to buildings only, the term, "certain premises," as used in the instant lease means both land and the buildings thereon. We cannot, therefore, agree with the contention of the lessor that reference to certain premises described as Beach Cottage, known as 1310 Butler Avenue, located on said lot could be taken to limit the lease to the dwelling and to preclude what is described as the premises upon which the dwelling is located. Obviously, since the description of the premises included both land and the building thereon, it became necessary to refer to such building as being located on such land.

It is contended by the lessor, however, that the size of the lot as set forth in the petition (80 feet by 389 feet) suggests that such lot is adaptable to further subdivision, and for this reason negatives any reasonable intention on the part of the lessor to grant an option to purchase the whole of said lot, by referring to the premises as being known as "Beach Cottage." It is shown by the pleadings that said lot is comparatively narrow, fronting only 80 feet on the ocean beach, and that the house is located on the back of the lot. Considering the possibilities of inundation and encroachments by the ocean in stormy weather, we think that there is nothing in the depth of the lot which would suggest that it was not the intention of the lessor to lease and grant an option to purchase the whole of said lot along with the cottage situated thereon. In view of the allegations that the purchase-price stated in the option represented the fair market value of the house and lot at the time the lease and option was entered into, it can not be said on demurrer that, by reason of the size of said lot, it would even suggest the idea of a possible subdivision or be contrary to the principles of equity and good conscience to enforce specific performance of said option.

Furthermore — even if it could be said that any uncertainty as to the subject-matter of the option existed by reason of any indefiniteness in the description of the property, since it is alleged that the plaintiff entered into possession of the entire specifically identified house and lot under the terms of the lease and option with the knowledge and consent of the lessor and made valuable improvements on both the house and lot — under the rulings by this court in Wardlaw v. Wardlaw, 185 Ga. 181,186 (194 S.E. 187), such allegations, if proven, would cure any such defect in the written description.

Judgment affirmed. All the Justices concur.