James v. Hutcherson , 81 Ga. 451 ( 1888 )

Blandford, Justice.

Mrs. Augusta A. Richards, who was the daughter of Henry Summerlin, deceased, sold her interest in the lands belonging to her father’s estate to Hutcherson for $100, taking Hutcherson’s promissory note therefor, payable when he should get possession of the land. At the same time, she made a deed conveying to him her undivided one-eighth interest in said land. The estate was administered upon by an administrator de bonis non, and the land sold at administrator’s sale, Hutcherson becoming the purchaser at the sale. Hutcherson afterwards sold and conveyed the land to another person. This action was brought by Mrs. Richards, for the use of James, to recover the amount due by Hutcherson upon his promissory note. Hutcherson pleaded that he had never gotten possession of the land, under the contract with Mrs. Richards, and that the note was not due until he got possession of the land thereunder. The court below undertook to construe the contract, and construed the note alone, without reference to the deed, so far as appears from this record.

We think the court erred in construing the contract as it did. What Mrs. Richards conveyed, and what Hutcherson bought, was her eighth interest in the land; and he bought it, as he states himself, knowing all the facts and circumstances connected therewith, and knowing that the land was subject to be administered upon by the administrator of Summerlin, the deceased father of Mrs. Richards. He failed to show by any evidence that he introduced, that he could not get the one-eighth interest of Mrs. Richards in this land, after it was sold,but on the contrary, he testified that he had never applied to the administrator for it. He stood alone upon the fact that he was to got possession of the land under the note, and that he was not to pay the note until he got possession under it; and it was upon this that the court put the ease. Mrs. Richards could not apply to the administrator herself, because she had assigned and transferred by her deed all her interest in the estate to Hutcherson.

If Hutcherson should, for any legal reason, fail to get an eighth of the proceeds of the land from the administrator, he might set off against this note the amount of the deficiency.

Judgment reversed.