Brittain Bros. v. Davis

144 S.E. 904, 167 Ga. 159, 1928 Ga. LEXIS 117

• Court: Supreme Court of Georgia
• Decided: September 24, 1928
• Docket: No. 6255
• Status: Published

Opinions

Per Curiam.

William T. Davis filed his petition against Brittain Brothers Company, praying for rescission of a contract, cancellation, and recovery of a payment of $1,000. He alleged that in March, 1926, he paid the defendant $1,000, and gave a promissory note due March 23, 1927, for $1,000, for the purchase of certain land from the defendant. Defendant gave him a bond for title, and he went into possession. Before the note became due he discovered that defendant had title to- only a four-sevenths interest in the land; that petitioner and his mother and sisters owned the other three-sevenths interest, as heirs at law of their father; that his father and brother owned the land together; that his father died in 1920, and his brother sold the land in 1926 to defendant. There is a general allegation of fraud in misrepresenting the title. Plaintiff alleged that he had tendered the bond for title and had tendered the land to the vendor, and had vacated, and that he told the defendant that the property in question was subject to its order, etc. The tenders and the demand were refused by defendant. Plaintiff does not allege that his possession was disturbed in any way, or that any adverse title was asserted. Suit was brought before the obligation to make title matured under the bond for title. Petitioner “offers to do equity and to pay a fair and reasonable rent for the four-sevenths interest of the defendant in the premises” while he was in possession.

We hold that the court did not err in overruling the demurrer to the petition, and that the amendments sufficiently met the special demurrer.

Judgment affirmed.

All the Justices concur, except