Opinion
36739.
DECIDED JUNE 18, 1957. REHEARING DENIED JULY 11, 1957.
Action for commissions; directed verdict. Before Judge Morgan. DeKalb Civil Court. April 1, 1957.
Johnson, Hatcher Meyerson, for plaintiff in error.
Hamilton Douglas, Jr., Haas, White Douglas, contra.
1. A contract of sale of a tract of land described therein as measuring a certain number of feet in width and in depth binds the obligor to make title to the entire tract so described, and if he has no title to a portion of it this is a material breach of the contract, entitling the purchaser to a rescission of the contract of sale at his election. The defendant purchaser here being justified in rescinding the contract of sale for failure of the covenant relating to marketable title, the real-estate broker who procured the contract between the parties cannot recover his commission out of the prospective purchaser.
2. The dimensions of the tract having been stated with exactitude in the contract of sale, and the lot having been further identified by its street address, the additional words in the contract of sale: "Buyer and seller waive legal description until time of closing" do not contradict or modify the previous statement that the lot has certain given dimensions so as to constitute a waiver of the defendant's right to insist on being deeded a lot of land of the dimensions stated.
3. Mere proof that the prospective purchaser might in the exercise of diligence have ascertained that the seller was not the owner of a part of the lot involved as stated in the sale contract will not estop him from insisting on the performance thereof according to its terms.
DECIDED JUNE 18, 1957 — REHEARING DENIED JULY 11, 1957.
The plaintiff, doing business as Dinkins Coppage Associates Realty Co., filed suit in the Civil Court of DeKalb County to recover commissions allegedly earned in obtaining the signatures of the seller and buyer (the latter, Calvin A. King being the defendant in this action) to a contract of sale of real property, after which the buyer refused to consummate the purchase.
The sale contract under which the plaintiff's rights accrue, if at all, describes the subject property as follows: "All that tract of land in the 17th District of Fulton County, Georgia, lot being 100 feet wide facing Greenbrier Road and being 100 feet wide across the rear and being 200 feet deep on both sides, being improved property with a modern brick veneer ranch type dwelling on same and better known as 5915 Greenbrier Road, Fulton County, Atlanta 5, Georgia. The buyer and seller waives legal description until time of closing." The contract listed a number of improvements to be made by the seller including the following: "a cypress walk bridge four feet wide with handrails on both sides to be built by the seller from one side of the ditch to the other of ample length to prevent eroding." The defendant admitted the contract and contended that he was justified in his rescission of the same because of a material and substantial discrepancy in the size of the lot. On the trial, the defendant testified without objection that the plaintiff had told him positively that the lot was 200 feet deep; that the parties viewed the back yard from the house; that there was a ravine (referred to in the contract of sale as a ditch) in the back which was 20 feet deep and 20 feet wide and that beyond this ravine was a little slope with a grove of trees; that the defendant was assured the grove of trees or part of it was in the lot, and it was agreed between the parties that the defendant could place a barbecue pit over there and the owner would build the rustic bridge over to the place where the barbecue pit was to be constructed; that it developed that the lot depth was only 180 feet instead of 200 feet and did not extend beyond the ravine at all except for a small pie-shaped piece 7 feet deep at the greatest point and angling back to the ravine; that this was not in the grove of trees and made it impossible to have a barbecue pit, unfeasible to have a bridge, and made the property as a whole unsuitable for the defendant's purposes, for which reason he refused to go ahead with the purchase. The plat introduced in evidence shows the property depth to be 180 feet, and the plaintiff testified that he told the defendant it was approximately 200 feet. No question is raised as to the admissibility of this evidence.
At the conclusion of the testimony a verdict was directed for the defendant. To this ruling, and to the judgment denying the plaintiff's motion for judgment notwithstanding the verdict exception is taken.
1. It is contended by the plaintiff in error that the description of the property above quoted as contained in the contract of sale shows an intention to sell and purchase by the tract, and that accordingly the case is controlled by Code § 29-201 as follows: "In a sale of lands, if the purchase is per acre, a deficiency in the number of acres may be apportioned in the price. If the sale is by the tract or entire body, a deficiency in the quantity sold cannot be apportioned. If the quantity is specified as `more or less,' this qualification will cover any deficiency not so gross as to justify the suspicion of wilful deception, or mistake amounting to fraud; in this event, the deficiency is apportionable; the purchaser may demand a rescission of the sale or an apportionment of the price according to relative value." The plaintiff in error contends that because the description of the property begins with the printed form "All that tract of land" and because it contains at the end the words, "better known as 5915 Greenbrier Road," that the defendant agreed to purchase this address regardless of the courses and boundaries stated in the sale contract. This contention is not tenable for the reason that the boundaries of the lot, as to the distances in feet, are not merely descriptive terms of a sale of land in gross but are an integral part of the contract. Code § 29-202 provides: "If the purchaser loses part of the land from defect of title, he may claim either a rescission of the entire contract, or a reduction of the price according to the relative value of the land so lost." In Holliday v. Ashford, 163 Ga. 505 ( 136 S.E. 524), s.c., 169 Ga. 237 ( 149 S.E. 790), it was held that the two Code sections must be construed together where one sells to another a city lot described in the bond for title by courses and distances, and where it appears upon subsequent survey that the front footage is 5 1/2 feet less than the described measurement of 196.1 feet, that in such event "it would seem that where the purchaser loses part of the land from a defect in the title, or where there is a deficiency in land sold by the tract, he may sue for a rescission of the contract of sale in a proper case." The plaintiff there obtained a rescission of the contract. In Foute v. Elder, 109 Ga. 713 ( 35 S.E. 118) a city lot was described in a bond for title as having a depth of 160 feet where in fact it had a depth of only 143 feet. There the buyer sought and obtained an abatement in the purchase price pro tanto, the court holding, headnote 1: "A bond for titles to a tract of land, described as being within certain boundaries and measuring a certain number of feet in width and in depth binds the obligor to make title to the entire tract so described; and if he has no title to a portion of it, this is a breach of the bond, although he did not have title to such portion at the time the bond was executed."
In Norris v. Coffee, 206 Ga. 759 (1) ( 58 S.E.2d 812) it was held: "Where a purchaser loses part of the land purchased, from a defect in the title, or where there is a deficiency in land sold by the tract, he may sue for rescission of the contract of sale or for a reduction in the purchase price. Code § 29-202; Riehle v. Bank of Bullochville, 158 Ga. 171 ( 123 S.E. 124); Roberts v. Wilson, 153 Ga. 538 ( 112 S.E. 451); Holliday v. Ashford, 163 Ga. 505 ( 136 S.E. 524). See also Dorsett v. Roberds, 172 Ga. 545, 552 (7) ( 158 S.E. 236); O'Farrell v. Willoughby, 171 Ga. 149 ( 154 S.E. 911); Miller v. Minhinnette, 185 Ga. 490, 494 (3) ( 194 S.E. 425); Martin v. Peacock, 171 Ga. 219 ( 155 S.E. 182)." The descriptions of the land involved in each of the above cases begin with the words "all that tract or parcel of land," and in the Norris case (as shown by examination of the record) wherein it was contended that there was a deficiency of 21 feet in a stated front footage of 150 feet, the description of the boundaries of the lot by courses and distances concludes with the words, "there being located on said lot a dwelling known as No. 207 Fifth Avenue." Accordingly, under the decisions in these cases, it follows that the defendant was entitled to rescind the contract of sale because the vendor was unable to furnish him a marketable title to the land which he agreed to purchase, and which was described in the contract of sale between the parties. There being no conflict of fact regarding this controlling point, it was proper for the trial court to direct a verdict in favor of the defendant.
Of the many cases cited in the excellent brief of the plaintiff in error, most have to do with the question of whether the purchaser was buying by the tract or by the acre, and it is true that where land is bought in gross, a statement that the tract contains a given number of acres is a matter of description only, but this rule has no application where a given quantity of land is described and the seller does not have title to the land within the boundaries stated in the contract. If anything contrary to what is here held appears in Land Trust Co. v. Morgan, 22 Ga. App. 388 ( 95 S.E. 1006) it must yield to the Supreme Court decisions above cited. However, careful reading of the Morgan case reveals that it was controlled by certain features peculiar to the description contained in the bond for title in that case which do not appear in the description in the contract of sale in this case — the description was drawn in reference to a plat, which plat showed the true dimensions of the lot, and the description was also drawn in reference to the lands adjoining its boundaries, so that the court there applied the rule that courses and distances and computed contents must yield to ascertained boundaries and monuments.
2. The parol testimony of the plaintiff that he told the defendant that the lot depth was "approximately" 200 feet can in no way change or alter the description in the contract of sale which calls for exactly 200 feet. The dimensions of the lot are not stated in the contract as so many feet "more or less" but as so many feet exactly. The language in the contract of sale as follows: "The buyer and seller waive legal description until time of closing" cannot be considered either as a waiver or a modification of that part of the description of the land under which the seller agrees to furnish marketable title to a described lot of land "200 feet deep on both sides." Accordingly, neither this testimony nor these words in the contract can alter the legal conclusion above reached.
3. "Proof that the obligee in the bond for titles knew or had an opportunity to learn that the obligor was not the owner of the entire tract described in the bond does not relieve the obligor of the consequences of his breach, it not appearing that there was any mistake in the description given in the bond." Foute v. Elder, 109 Ga. 713 (2), supra. Accordingly there was no obligation on the defendant purchaser to ascertain in advance that the seller had title to the land warranted in the contract of sale, as contended by the plaintiff in error.
The trial court did not err in granting the motion for a directed verdict.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.