Pearson v. Courson , 129 Ga. 656 ( 1907 )

Atkinson, J.

1. Under the allegations of the petition, while Pearson was in actual possession under an executory contract to buy, Lewis bought from Mrs. Guill, taking a deed and agreeing, upon payment of the balance of the purchase-money, to execute a deed to Pearson. This agreement was ratified by Pearson, who continued to pay interest to Lewis, and otherwise manifested his consent to the transaction. Under these circumstances, Lewis assumed the position of Mrs. Guill, and the relation of vendor and vendee arose between Lewis and Pearson. By the subsequent contract between Lewis and Pearson and T. N. Courson, T. N. Courson assumed the position of Lewis, and the relation of vendor and vendee arose between T. N. Courson and Pearson.

2. After the relation of vendor and vendee arose between T. N. Courson and Pearson, the latter paid to the former all the purchase-money. Under a familiar rule, stated in the Civil Code, §4037, and numerous decisions cited thereunder, full payment of the purchase-money, with nothing more to be done by Pearson in order to comply with his contract, entitled Pearson to the remedy of specific performance. His remedy was not defeated by the fact that after the agreement between Lewis and Pearson and T. N. Courson, and before the purchase-money had been paid, but while Pearson was in actual possession, T. N. Courson, without Pearson’s knowledge or consent, induced Lewis to make the deed, not to himself, but to his father, N. C. Courson, a mere volunteer, who was not a party to the contract, nor had paid value. Under these circumstances, N. C. Courson could not, under any theory involved in the facts alleged, acquire as against Pearson a title, either from Lewis or T. N. Courson, except subject to Pearson’s rights. He was a mere substitute offered by T. N. Courson as a depositary for the record title. After payment of the purchase-money to T. N. 'Courson, in addition to other possible remedies, Pearson could, in equity, compel N. C. Courson to execute a deed. Pomeroy on Con. (2d ed.), §465; Bryant v. Booze, 55 Ga. 438. In this instance, Pearson resorted to that remedy.

3. Lewis was not a necessary party, because the remedy adopted by Pearson was no attack upon the deed executed by Lewis. On the contrary, it was an adoption of the deed. The effort was merely to ratify the deed which Lewis had made, and to obtain a ■decree which would pass the record title on to the person intended by the contract. In view of the remedy adopted, Lewis had no possible interest involved. The only persons whose interests could be affected were the two Coursons, both of whom were properly before the court as parties defendant. "With them before the court, full ■equity could be administered; and it would therefore be competent for the court also, as against them, to enter a decree judicially establishing the title of Pearson and quieting the right to possession. The petition was not amended. It was erroneous to dismiss the case on general demurrer.

4. The proposed amendment, averring that the deed from Lewis to N. C. Courson was not delivered, would have materially affected the plaintiff’s case, and, in order to obtain a decree for specific performance, would have rendered Lewis a necessary party. If the deed had not been delivered, the record title would still be in Lewis, and he would have a right to be heard before it could be adjudicated out of him. There was no offer to make him a party. But other relief, founded upon a perfect equity, the equivalent of legal title, was sought in a decree judicially establishing Pearson’s title as. against the two Coursons, and quieting his possession as against their claims. Sufficient allegations were made to have authorized a decree of this character, although, for the reasons already stated, no decree against Lewis, requiring him to make a deed, could be made. Allegations in the original petition, which were sufficient to authorize that character of relief, were certainly sufficient to amend by. The amendment was germane upon that feature of the casé, and was not of such character as to add or substitute a new cause of action. Its effect was eliminative, not additional or substitutive. The relief obtainable with the amendment allowed would not be as extensive as if it were not allowed, but, under the allegations in the present case, that is a mere matter of choice for the plaintiff.

5. So, too, with respect to the amendment offering to strike the name of N C. Courson as a party defendant. The plaintiff has the right at any time, by amendment, to strike the name of one or more defendants, provided a codefendant has not prayed for any relief against such defendant, or cross-relief has not been prayed against the plaintiff; but in so amending, the plaintiff must abide the consequences. Coston v. Coston, 66 Ga. 382; Walker v. Wadley, 121 Ga. 275 (6). In this case, T. N Courson, the only eodefendant, had not prayed for any relief against the estate of N. C. Courson, nor had any cross-relief been prayed against the plaintiff. The plaintiff should have been allowed to amend by striking the name of the legal representative of such estate as a party defendant.

Judgment reversed.

All the Justices concur, except Holden, J., who did not preside.