McKown v. Heery , 200 Ga. 819 ( 1946 )

The petition in the present case is one seeking the specific performance of a contract to sell land; and the allegations of the petition being insufficient to show a valid and unconditional tender of the purchase money, the court did not err in sustaining a general demurrer to the petition.

No. 15453. MAY 10, 1946. REHEARING DENIED JUNE 6, 1946. On August 14, 1945, H. E. McKown brought an equitable petition against H. T. Heery for specific performance, alleging that on April 8, 1943, the plaintiff and the defendant entered into a "lease and option of purchase agreement," as shown by the copy attached to the petition. This agreement provided that Heery, for a stipulated rental, payable monthly in advance, would rent to McKown described land for a term of two years from April 8, 1943; that, in the event any rental should become due and remain unpaid for a period of five days, the agreement should become void; that "the party of the first part [Heery] agrees to give the party of the second part [McKown] an option to purchase said property, together with all of the entire tract owned by party of the first part, at said location [with described exceptions]," the purchase-price for said tract to be $4250. It was alleged that in April, 1945, the defendant accepted the usual rental for the property from the plaintiff's agent, accepting rent for the months of May, June, July, and August, 1945, thereby renewing the lease and option for another term of two years from April, 1945; that, desiring to exercise the option, the plaintiff went to the expense of having the title to the property examined and arranging to secure the funds to pay the defendant the purchase-price of the property; that "after petitioner had gone to said expenses and raised the funds with which to make said purchase, he called upon defendant to execute to him a warranty deed to said property, and made the offer to pay defendant the full sum of $4250 as agreed by said option of purchase, and defendant refused to execute to him a warranty deed to said property, and refused to accept the said payment of $4250 for the payment of said property, which offer and refusal was made August 13, 1945." The defendant demurred generally to the petition on the ground that it set forth no cause of action. The demurrer was sustained, and the exception is to this judgment. 1. There is no merit in the contention that the option to purchase is void because it is without consideration, since under the terms of the contract the optionee was to pay a specified sum per month as rental. Such payment would be sufficient consideration to support the option, which is part of the same contract. Walker v.Edmundson, 111 Ga. 454 (36 S.E. 800); Turman v. Smarr,145 Ga. 312 (3), 314 (89 S.E. 214); Crawford v. Smith,151 Ga. 18 (105 S.E. 477); Pope v. Read, 152 Ga. 799, 802 (111 S.E. 382).

The present case is distinguishable from Goodman v.Spurlin, 131 Ga. 588 (62 S.E. 1029), where the option to purchase was not part of a lease, recited no consideration, and there was no acceptance by the optionee before the option was withdrawn.

2. "Where the covenant gives the lessee the option to purchase at any time for a specified sum, he may exercise the option at any time within the term of the lease." 3 Thompson on Real Property, 490, § 1329. In the absence of a specified date for exercising the right of purchase, the option will be construed as operative for the term of the lease or renewal thereof, and such option would not be void as containing no time limit within which the right to purchase might be exercised. A lease agreement for a specified term of two years, containing in addition provisions for the purchase of the property, which lease and option agreement were renewed, it is contended, by action of the parties thereto for a like term of two years, would not be violative of the rule against perpetuities. In Turner v. Peacock,153 Ga. 870 (113 S.E. 585), cited by counsel, where a deed contained the clause that the grantor did "sell unto [the named grantee] its successors and assigns, his good will and the perpetual right, option, and privilege to purchase an additional fifty acres of land," such agreement was held to be in violation of the rule against perpetuities. Turner v. Peacock, supra, is clearly distinguishable on its facts from the present case.

3. "In a suit by the purchaser for specific performance of a contract for the sale of land, it should be made to appear that before institution of the action the plaintiff had paid or tendered the purchase-money according to the contract, or that such had been waived by the defendant." Roberts v. Mayer,191 Ga. 588 (13 S.E. 382). In the instant case it is not alleged that the plaintiff "tendered" to the defendant the purchase-price of the property. It is alleged only that "he called upon defendant to execute to him a warranty deed to said property and made the offer to pay defendant the full sum of $4250 as agreed by said option of purchase." In Payne v. Power, 140 Ga. 758 (79 S.E. 771), this court held that, "An allegation of an offer to pay is not the equivalent of a tender." Even had the plaintiff alleged that he made "a tender," or "an unconditional tender," of the purchase-money, these allegations standing alone would not suffice, as against a demurrer, for it is incumbent upon the pleader to allege facts constituting a legal tender. As stated inMcGehee v. Jones, 10 Ga. 127, 132, "If there is equity in this bill in other respects, it could not stand against the demurrer, because of the want of certainty in the averments relative to the tender. They are too vague. The general statement, that a tender was made, is not enough. It is as defective as a general averment of fraud. That a tender was made is a conclusion of the pleader, simply. He must state the facts which constitute a legal tender." The allegations of tender in the McGehee case were similar to those in this case; it being there alleged that "on the 9th March, 1850, he tendered to Abner McGehee . . the full amount of the balance of the judgment, and demanded titles from him which he neglected and refused to make."

Clearly the allegations in the present case are insufficient to show a valid and unconditional tender. Accordingly, the trial court did not err in sustaining the general demurrer. And this is true although the court may, as stated by counsel, have sustained the demurrer on another theory. Coker v. Atlanta, 186 Ga. 473 (198 S.E. 74), and cit.

Judgment affirmed. All the Justices concur.