Mathis v. Crowley , 146 Ga. 749 ( 1917 )

Pish, C. J.

1. “After a general term of the superior court has been organized by the presiding judge and put into operation, the term continues until finally adjourned by the presiding judge or by the operation of some provision of law.” Liverpool Insurance Co. v. Peoples Bank, 143 Ga. 355, 358 (85 S. E. 114); Braxley v. State, 143 Ga. 658 (85 S. E. 888).

(a) Applying this principle, the judge did not err in ruling that the term of the court at which the case was tried was nbt adjourned, and in refusing to dismiss the motion for new trial on the ground that it was not made during the term at which the ease was tried.

(b) The. filing and approval of the brief of evidence was in accordance with the order extending the time for filing the same.

2. A purchaser of land, who is in undisturbed possession under an absolute warranty deed, can not have rescission and recover from the grantor partial payments made on the purchase-price, or have damages covering the cost of improvements made on the land, solely upon the ground of a defect in the grantor’s title. Such relief is dependent upon the grantee’s equitable right of rescission or cancellation, which does not exist unless he allege that the grantor is insolvent or a non-resident, or allege fraud, mutual mistake, or some other fact which would make it inequitable for the grantor to hold the purchase-money already paid and to collect the balance. Henderson v. Fields, 143 Ga. 547 (85 S. E. 741) ; 9 Corpus Juris, 1188.

(a) Applying the above principle, the judge erred in overruling the demurrer to the petition as amended.

(b) As the general demurrer to the petition should have been sustained, the further trial of the case was nugatory.

(e) In so far as the cross-bill of exceptions assigns error on the judgment refusing to dismiss the motion for new trial, that judgment is affirmed. And in so far as the main bill of exceptions assigns error on the exceptions pendente lite to the overruling of the demurrer, it is reversed.

April 13, 1917.

Equitable petition. Before Judge Thomas. Berrien superior court. February 12, 1916.

J. J. Murray, for Mathis et al. Hendricks, Mills & Hendricks, contra.

Judgment reversed on the main bill of exceptions, and affirmed on the» cross-bill.