Early v. Conn , 190 Ga. 660 ( 1940 )

1. "The maker of promissory notes given for the purchase of land of which such maker holds undisturbed possession under a bond from the vendor, conditioned to make to the former a good and sufficient title to the land upon payment of the notes, can neither voluntarily rescind the contract of purchase nor defeat the collection of the notes, upon the ground that the vendor has not in fact a good title to the land in question, without showing clearly that there is a paramount outstanding title against the vendor, and also proving fraud upon his part, or that he is insolvent, or a non-resident, or else proving other facts which would authorize equitable interference with the carrying out of the contract as made." Black v. Walker, 98 Ga. 31 (26 S.E. 477).

(a) The above rule will not be varied on account of the fact that during the progress of the litigation the court appointed a receiver to take charge of the property.

(b) The facts relied on therefor do not show fraud, and the case does not otherwise fall within any of the exceptions indicated in Black v. Walker, supra.

(c) It was not error to sustain the demurrer.

2. The cross-action of plaintiff in error as amended does not show any right to rescind.

3. The court did not err in admitting in evidence the contract complained of in the motion for new trial.

(a) It was not a contract declared upon, but was merely evidence on the issues before the court. Compare Simpson v. Charters, 185 Ga. 592, 597 (196 S.E. 31).

(b) Nor was it a good objection that the contract recited that the exact amount of interest now due on a specified series of notes should be calculated and ascertained by a certain party.

4. It was not erroneous to direct the verdict, or to refuse a new trial.

Judgment affirmed. All the Justices concur.

No. 13248. JULY 15. 1940. A petition was filed by W. F. Conn, in which Mrs. L. T. Early and Mrs. T. J. Conn were named as defendants. Before the trial the action was dismissed, to which ruling there was no exception. In the meantime each of the defendants prayed for affirmative relief as against the other. On demurrer by Mrs. Conn, the court struck practically all of Mrs. Early's cross-action, and, after introduction of evidence, directed a verdict in favor of Mrs. Conn against Mrs. Early, who excepted pendente lite as to the sustaining of the demurrer. Her motion for new trial was overruled, and she excepted also to that.

During the pendency of the litigation, a receiver was appointed by the court. At a sale by commissioners appointed in partitioning proceedings, Mrs. Conn purchased a parcel of real estate and sold it to Mrs. Early, giving a bond for title, and receiving notes for the purchase-money. In her defensive pleadings Mrs. Early alleged that there had been misrepresentations as to the title, for that Mrs. Conn represented that her title came through a deed (whereas in fact it came through a will), with the further representation that the title was perfect; that she had been unable to procure a loan on said property, and had been informed that the title was not perfect; that there was a mutual agreement to rescind; that she (Mrs. Early) went to Mrs. Conn and demanded a rescission, and Mrs. Conn agreed thereto, agreeing to surrender and cancel the note and to account to Mrs. Early for all money paid on the purchase-price, taxes, etc., upon Mrs. Early procuring a tenant for Mrs. Conn and delivering the bond for title to Mrs. Conn, and vacating the premises. Several amendments to this cross-action were made, but in none of them was it alleged that Mrs. Early ever procured a tenant for Mrs. Conn. Demurrers to the cross-action were sustained, and on the trial, after introduction of evidence, the judge directed a verdict. A motion for new trial was overruled, and Mrs. Early excepted.