Clark v. Cagle , 141 Ga. 703 ( 1914 )

Lumrkin, J.

(After stating the foregoing facts.) A vendor filed his equitable petition against his vendee to enforce specific performánee of an executory contract for the sale of land. The court dismissed the petition on general demurrer.

1. While it is declared that specific performance of a contract (if within the power of the defendant) will be decreed, generally, whenever the damages recoverable at law would not be adequate compensation for the non-performance (Civil Code (1910), § 4633), yet it has long been recognized that, where land is the subject-matter of the agreement, equity has jurisdiction to enforce specific performance, and that this does not depend upon the existence of special facts showing the inadequacy of a legal remedy in the particular case. Some authorities announce that this equitable rule is not dependent on the fertility of the land, or its containing minerals, or the like, but on the fact that it is land, a favored subject (as they assert) in every country inhabited by people of Anglo-Saxon origin, and that land is assumed to have a peculiar •value, so as to give equity jurisdiction for specific performance, without reference to its special qualities. Some courts have advanced the theory that a court of equity decrees performance of a contract for land, not because of the real nature of the land, but because damages at law, which must be calculated upon the general money value of the land, may not be a complete remedy to the purchaser, to whom the land may have a peculiar and special value. Whatever the basis of the rule may be, there is a general concurrence as to its existence. 36 Cyc. 552, and notes. The above statement refers more directly to a purchaser. But it will be shown presently that the right is generally mutual.

The rule above announced was recognized by this court as early as the decision of Chance v. Beall, 20 Ga. 142. In that case it was held that where a contract for the sale of land is in writing, is certain and fair in all its parts, is for an adequate consideration, and capable of being performed, it is just as much a matter of course for a court of equity to decree the specific performance of it as it is for a court of law to give damages for a breach of contract in other cases. This ruling has since been followed. Forsyth v. McCauley, 48 Ga. 402; Jackens v. Nicolson, 70 Ga. 198; Belle Greene Mining Co. v. Tuggle, 65 Ga. 652; Crovatt v. Baker, 130 Ga. 507 (3a), 512 (61 S. E. 127). Generally the right to specific performance is mutual; and when one party can compel performance, if he so desires, so'likewise can the other. Blalock v. Wag-goner, 82 Ga. 122, 128 (8 S. E. 48). In several of the cases cited above, the proceeding was instituted by the vendor. The right to such relief on the part of the vendor is recognized in the Civil Code (1910), § 4638, where it is declared that "The vendor seeking specific performance must show an ability to comply substantially with his contract in every part, and as to all the property.”

Under the general equity practice, the decree may compel the execution and delivery of deeds or other instruments. 20 Enc. Pl. & Pr. 480, and note 2; Granville v. Betts, L. J. (N. S.) Ch. 18, 32 (a deed directed to be executed); Sterling v. Klepsattle, 24 Ind. 94, 87 Am. D. 319 (the execution of a bond for title compelled); Ogden v. Ogden, 4 Ohio St. 182 (the execution of a mortgage); Avery v. Langford, 1 Kay, 663 (an agreement to give a damage bond as part of a sale of land).

A recent case directly in point is that of Farm and Land Company of Abbeville v. Roseman, 93 S. C. 350 (76 S. E. 979), where it was held that a contract binding the vendor to convey a fee-simple title to the purchaser, and binding the purchaser to pay a specific price in cash and execute a note and mortgage on land for -the balance, was mutual, and the vendor, offering to perform, could compel the purchaser to perform.

Under our statute, a decree for specific performance, requiring the execution of a conveyance to be made, operates to transfer title without the actual execution of a conveyance; and thus the necessity of enforcing the decree requiring the signing of the deed is obviated. Civil Code (1910), § 5425. But this provision does not destroy the general power of a court of equity to decree specific performance in favor of a vendor, upon a proper ease being made. Here the parties were not in a situation where an immediate conveyance would be required, so as to make the section above cited applicable. The circumstances rather invoke the provision of the next section (§ 5426), which declares that a superior court has full power to mold its decrees so as to meet the exigencies of each case; and has full power to enforce its decrees when rendered. Doubtless the payment of money past due by contract would not be enforced by process of attachment, but the decree could be so molded as to do complete justice, making proper provision as to the amount due, and requiring the defendant to execute the note for the amount not due.

2. The petition was not demurrable on the ground that the contract was not enforceable because the description of the property contained in it was too vague and indefinite to form the basis of a suit. The property was described as the place of the vendor, known as the “Humphrey Place,” containing 330 acres more or less. It was alleged that the vendor owned a place in Hancock county about two miles from White Plains, containing 330 acres, and known as the Humphrey Place; that this was the only place in that county known by that designation; and the names of the owners of land bounding the property were given. While the description in the contract was rather meager, it was capable of being applied to its subject-matter by parol; and when taken in connection with the allegations of the petition, it was not subject to demurrer. Crawford v. Verner, 122 Ga. 814, 816 (50 S. E. 958); Harriss v. Howard, 126 Ga. 325, 330 (55 S. E. 59); Hancock v. King, 133 Ga. 734 (66 S. E. 949) Lyle v. Phillips, ante, 618 (81 S. E. 867).

3. The contract was not an option, as the defendant called it in his refusal to carry it out. It was a contract with mutual obligations on the part of the vendor and purchaser.

4. It was alleged, that, before the day fixed for making the payment and executing the note, the defendant notified the plaintiff of his refusal to carry out the contract; that the plaintiff insisted upon its performance, and offered to put the defendant in possession on January 1, 1911, upon the payment of the installment of one thousand dollars of the purchase-price and the execution of a note for the balance; but that the defendant refused to comply. Moreover the petition, brought after the date named, alleged that, after the defendant’s refusal to receive possession, the plaintiff was compelled to retain possession, and accordingly rented the property for the benefit of the defendant; and he offered to account for the rents and profits which he had received, after deducting necessary expenditures. 36 Cyc. 755; 39 Cyc. 1629, 1637.

Upon the trial the rights of the parties respectively can be determined, an accounting can be had, and a decree can be shaped for the specific performance of the written contract according to its provisions.

It was error to dismiss the petition on general demurrer.

Judgment reversed.

All the Justices concur.