Wimpee v. Burt , 1918 Ga. LEXIS 361 ( 1918 )

Per Curiam.

A vendor of land executed and delivered to the vendee a bond conditioned to make to the vendee good and sufficient title to the land upon the payment of the purchase-money, evidenced by promissory notes. The vendee having defaulted in the payment of the purchase-money notes, the vendor filed suit thereon. While this suit was pending the vendor instituted ejectment against the vendee to recover the land. To this action the defendant filed a plea .in abatement, and alleged the pendency of the prior suit upon the purchase-money notes. She also answered, in substance, that she purchased from the plaintiff a large tract of land composed of several distinct parcels and lots described in the bond for title, at the price of $8500; that she paid to the plaintiff $2500 in money at the time of the purchase, and subsequently $600 in money at one time, and $160 in money at another time; that the possession of a certain tract of land consisting of 55 acres described in the bond for title and a part of land purchased by the plaintiff from the defendant had not been delivered to the defendant; that the plaintiff did not have and had never had title to the tract of 55 acres, and could not convey the same to the defendant; that said tract of land was of the value of $2750; and that defendant had taken possession of the land described in the bond for title, with the exception of the 55 acres aforesaid, and had made certain valuable improvements thereon, permanent in character. She prayed, that plaintiff be not allowed to recover the land; that he be required to account to her for the sums of money paid by her on the purchase-price of the same, for the value of the 55-acre tract to which plaintiff did not have title, and for the value of the improvements so made; that, upon accounting, it be decreed that she had fully paid the purchase-money due to the! plaintiff;] but, if it should be determined that she had not fully paid the purchase! money, that the'plaintiff have judgment for such balance, and that she be allowed a reasonable time in which to pay the same, and that she thereupon have a decree for the land described in the bond for title, less the 55-acre tract. Held:

1. The plea in abatement was properly stricken on demurrer. Hines v. Rutherford, 67 Ga. 606 (4); Jones v. Snider, 99 Ga. 276 (25 S. E. 668); Coley v. Dortch, 139 Ga. 239 (2), 240 (77 S. E. 77).

2. The answer, in the nature of an equitable plea, was insufficient to entitle the defendant to some of the relief prayed, and was otherwise bad in form; but in so far as it prayed for an accounting for the amount paid by the defendant on the purchase-price of the land, which would involve a consideration of the money paid by her to the plaintiff, and also a deduction or allowance for the value of the 55-acre tract, to the end that the amount due by the defendant to the plaintiff might be ascertained and declared by the court, the plea set up substantial equities and was sufficient as a basis for a decree. If upon the accounting prayed it should be determined that the defendant had fully paid the purchase-money, she would be entitled to the relief prayed-; if it should be determined that ■ she had not fully paid the purchase-price, she would be entitled, upon the payment of the balance due, to a decree for the portion of the land to which the plaintiff could execute title in conformity with his bond. It was error, therefore, to strike the plea) in its entirety. Couch v. Crane, 142 Ga. 22 (82 S. E. 459); Civil Code, § 4638.

No. 620. September 14, 1918. Rehearing denied September 25, 1918.

Ejectment, Before Judge Wright. Eloyd superior court. September 1, 1917.

Sharp & Sharp, W. M. Henry, and J. M. Hunt, for plaintiff in error. Denny ■&. Wright and Barry Wright, contra.

Judgment reversed.

'All the Justices concur, except Gilbert, J., dissenting.