Graham v. Theis

47 Ga. 479

• Court: Supreme Court of Georgia
• Decided: January 15, 1873
• Status: Published

Opinion

McCay, Judge.

The writing and signing of a deed, and the tender of it to the grantee, is not a conveyance of the land. Until the deed is delivered the instrument is nothing, and so long as the grantee refuses to accept there can be no delivery in fact. The facts show at last only an offer to perform. The grantor still has the title; he has done nothing by which he is hurt. He is in just as good a situation, as regards the title, as he was before he wrote the deed. No fraud has been practiced on him, by virtue of which he has put himself in a new position by parting with his title, so that to allow the statute of frauds to be pleaded he would be defrauded. The authorities establish that the part performance which entitles a contractor for the sale of lands by parol, to relief, must be a part performance of the terms of the contract. . The doing of an independent thing, even though the.act, would not have been done but for the contract, is not sufficient: Revised Code, sections 1940, 3130; Fry on Specific Per., 174; Kerr, on Fraud, 135. The basis of the whole doctrine of specific performance, by a Court of equity, of parol contracts for the sale of land, is fraud. The Court will interfere to prevent fraud, but the rule of part performance is confined to part performance of the contract. Indeed, the very word performance implies this. Any other rule would place the case altogether in the hands of one party.

If it be contended that the agreement not to bid was a part of the contract, then it is met by the objection that the agreement was illegal. It amounts to a contract to commit a fraud upon the deceased’s estate, by stifling bids at the salei This is contrary to public policy, and is only the more odious that it has the executor for one of thé parties. Altogether, we are clear that this is nothing but a plain effort to enforce a parol contract for the sale of lands, with no reason given to make it an exception to the statute.

Judgment reversed.