Hand Trading Co. v. Chason , 139 Ga. 156 ( 1912 )

Lumpkin, J.

1. A contract can not be both nullified ana enforced in the same action. A proceeding for specific performance asserts the validity of a contract. A proceeding for a decree declaring it void asserts its invalidity. The one affirms, the other repudiates the contract. Southern Ry. Co. v. Parramore, 119 Ga. 690 (46 S. E. 822); 31 Cyc. 75. The plaintiff claimed as a transferee under one who was the assignee of a bond for title. It alleged that it had made a tender of the amount due under the bond, and prayed specific performance. The case in the main was one proceeding for specific performance. Apparently, as a species of supplement or appendix, the plaintiff alleged that, in addition to the legal principal and interest described in the bond, the obligees gave to the obligor a note for $25, falsely bearing a different date, thus rendering the transaction usurious and the deed void. It was prayed, that, if there was usury, it be decreed that the obligor should receive the amount tendered (the amount specified in #the bond), and that the title be decreed to be in the plaintiff.' The two tilings were inconsistent. Perhaps the plaintiff might have been required to elect whether he would proceed under the bond for title or against it. But the original obligees assigned only the bond. Their assignee had no legal title, and could convey none. The sum tendered was alleged to be the amount of the notes described in the bond. There was no claim to reduce the amount by purging usury. If the plaintiff was entitled, as the transferee of the assignee of the bond for title, to enforce the contract, it could proceed for that purpose. But it could not set this up 'and also at the same time attack the deed on which the bond was based, as void for usury. Under the pleadings there was no error requiring a reversal, if 'any at all, in the striking of the allegations in regard to usury. After they were stricken, it followed that they could not be supported by evidence.

2. The court admitted in evidence a written agreement between Wilder, the transferee of the bond, under whom the plaintiff claimed, and the obligor in the bond, made about two years and a half before the conveyance to the plaintiff (which transfer was not on the bond,'but on a separate paper). This contract recited, in effect, that such transferee was indebted to the obligor for certain land for which he held bond for title, and had given his notes; that the obligor left with a named person the notes, and the other party deposited his bonds for title with the same person; that it was agreed that if such party should pay as much as $300 “on the Barton place, and as much as $500 on the Sellers place, by August 1, 1908, then said amount is to be credited on said notes, and Wilder is to have further 'time on the balance of said notes; however, should the said Wilder not pay to W. S. Wight [the depositary] by August 1, 1908, the above-mentioned amounts, then W. S. Wight is to deliver to Chason [the obligor] the bonds for titles and to J. S. E. Wilder the notés.” This contract was somewhat unskillfully drawn. But the evidence showed that the land in controversy was the Barton place. The Sellers place was another, which plaintiffs transferor (Wilder) had bought from the obligor in the bond, but failed to pay for. He never paid the gmounts stated in the agreement. One of the notes described in the bond for title here involved had been reduced to judgment, and the execution had issued, before the agreement was made. The obligor thus granted time. The reference to granting further time is vague; but, by comparison of the amount to be paid with the-principal of the past-due noteá'and the maturity of those remaining,, it was not so uncertain that it could be declared void as matter of law, and rejected from evidence.

3. Under the evidence, there was no error in directing a verdict for the defendants.

Judgment affirmed.

All the Justices concur.