Burkhalter v. Roach ( 1914 )

Evans, P. J.

(After stating the foregoing facts.)

1. Courts in proper cases will require parties to specifically perform their contracts, but courts have no power to make contracts for the parties. The plaintiff and the defendant entered into a written contract for the sale of land. The premises were described as calling for certain abutters and a natural landmark. There is no allegation of misdescription, nor any prayer for relief against an erroneous description. The plaintiff attaches to his petition a deed wherein the description is different from that in the contract of sale, and asks a decree compelling its execution by the defendant. He submitted evidence tending to prove that the land described in the contract of sale was the same as that described in the deed which he was seeking to have the defendant execute. On the other hand, the testimony of the defendant was to the effect that there was a substantial difference between the two descriptions. The defendant was obligated to sell the land as described by her, and the courts will not compel her to execute a deed to land differently described. What the plaintiff is entitled to, upon payment or tender of the purchase-money, is a performance of the contract which the defendant obligated herself to perform; and that is, to execute a deed having the description of the land as contained in the contract. Accordingly, it was not error to instruct the jury that the defendant “would not be bound to convey any other tract of land than the land she sold, and equity would not decree a performance, if she offered to do that and it had been refused.”

2. There was no contest between the parties that the amount tendered by the plaintiff was the full amount due under the contract. The defendant claimed that both tenders were coupled with the demand that she execute a deed. Such a tender is not unconditional. DeGraffenreid v. Menard, 103 Ga. 651 (30 S. E. 560); Terry v. Keim, 122 Ga. 43 (49 S. E. 736). On the other hand, the plaintiffs testimony tended to show that the tender was unconditional. Further, the plaintiff introduced testimony tending to show conduct on the part of the defendant, prior to the maturity of the last payment, evincing a purpose on her part not to perform the contract. Such conduct will excuse a tender. Miller v. Watson, 139 Ga. 29 (76 S. E. 585).

3. The statement in the defendant’s answer that she notified the plaintiff that unless he performed his contract by January 1, 1906, she would rescind it, is apparently an inadvertent error as to the date, inasmuch as the notice which was introduced in evidence shows that the plaintiff was given until January 6, 1906, to make the payment. Ordinarily in a contract for the sale of land time is not of the essence of the contract. Courts lean against such construction, for the reason that it would result in the enforcement of a penalty, and because interest is ordinarily treated as full compensation for the delay. Ellis v. Bryant, 120 Ga. 890 (48 S. E. 352). So that the non-payment of the purchase-price or any installment thereof at the time stipulated in the contract will not, of itself, authorize a rescission or forfeiture of the contract by the vendor. 39 Cyc. 1368; Lytle v. Scottish American Mortgage Company, 122 Ga. 458 (50 S. E. 402). The court, in varying forms, instructed the jury that if the plaintiff failed and refused to perform his part of the contract, namely, make the payments as therein specified, the defendant would have the right to rescind the trade, provided she restored him to his original position. The vendor’s right to an equitable rescission, according to the court’s instruction, was made to depend entirely upon the payment of the purchase-money at maturity. Other circumstances must concur, to authorize a decree of rescission of a contract, than the mere non-payment of the purchase-money at maturity; and even in those cases where a vendor would be entitled to rescind after the failure of the vendee to pay the purchase-money when due, and notice is given that the vendor will claim a rescission if the vendee fails to perform within the time specified in the notice, such time must be a reasonable one, and its reasonableness is a question for the jury.

4. It is contended that the demurrer was properly overruled, because the contract sought to be specifically enforced is alleged to embrace the same land described in the deed which the plaintiff specifically prayed that the defendant should execute, and that on demurrer the identity of the land is admitted. The boundaries of the land contained in the contract of sale are different from those given in the deed. The description in the contract is simple and definite, while that contained in the deed is very complex. Not only is there a variance in boundaries, but the deed enlarges the acreage and contains a recital that the land conveyed is the western half of a tract formerly owned in common by Dr. J. W. Roach and Dr. L. T. Huot, which had never been divided between these tenants in common. The contract contained no reference to such recitals. The defendant contracted to convey the land lying within certain boundaries, and the plaintiff is not entitled to a decree requiring her to execute a deed to land within different boundaries and containing recitals and admissions of fact connected therewith which were no part of her contract of sale. This rule has been carried to the extent that specific performance of a parol gift of a definite part of a tract of land will not be decreed on proof that the whole tract was given. Rives v. Lamar, 94 Ga. 186 (7), 187 (21 S. E. 294). The petition should have been dismissed on demurrer, upon the ground that plaintiff was demanding of the defendant a conveyance of land different from that embraced in the defendant’s contract of sale. Stricker v. Tinkham, 35 Ga. 176 (89 Am. D. 280); Tumlin v. Vanhorn, 77 Ga. 315 (3 S. E. 264).

Judgment reversed on loth bills of exceptions.

All the Justices concur.