The question of specific performance, which was sought in the original petition, having become moot in the trial court, and the allegations of the petition as amended not setting forth any cause of action for damages, either because of an alleged breach of contract as to the sale of certain realty or because of alleged fraud and deceit, the court did not err in sustaining the general demurrers of three defendants; and since the fourth defendant had ceased to be a material and necessary defendant for reasons stated in the opinion, the court properly dismissed the action as to all defendants.

DECIDED FEBRUARY 2, 1950.

William P. R. Monroe Jr. brought suit in the Superior Court of Chatham County against Mrs. Bert S. Goldberg, M. Goldberg, Sam Goldberg, and Casper Wiseman, the petition as amended alleging the following: On November 17, 1948, M. Goldberg verbally agreed to sell, and W. P. R. Monroe Sr., acting as agent for the petitioner, agreed to buy, a described tract of land in Chatham County, Georgia, known as the Gould or Hazzard tract, the purchase-price being $2750, to be paid $500 cash and the balance on named terms. The said M. Goldberg represented to the petitioner's agent at that time that title to the land was in Mrs. Bert S. Goldberg, his wife, and that he had full power and authority to sell the land for her, but that he would have to get her to sign the sales ticket. He further represented that his brother, Sam Goldberg, had been handling the property for Mrs. Bert S. Goldberg and had lent $1800 of her money to one Barnes to help pay for the land, that Barnes had fallen down on the first payment, and that Mrs. Goldberg had taken over the property. On the following day M. Goldberg brought to the petitioner's said agent a sales contract containing a description of certain land. After having inserted in the sales contract a reference to a survey by a named surveyor, because the petitioner was not certain that the description was that of the Gould property, which he intended to purchase, the petitioner's agent then executed the sales contract and gave to M. Goldberg a check for $100, payable to Mrs. Bert S. Goldberg, which check, as earnest money, was endorsed and cashed by Mrs. Goldberg, a copy of the sales contract being attached to the petition and made a part thereof. An examination of the title to the property described in deeds furnished the petitioner's attorney, revealed the fact that the tract therein described was entirely different from that which the petitioner had agreed to buy and was known as the C. L. Joyner tract. Further examination revealed that the title to the property which the petitioner agreed to buy, the Gould tract, was vested in Southern Furniture Specialties Company, a corporation, subject to a deed to secure debt to Sam Goldberg, dated September 3, 1946, claimed to be lost and subsequently established in a proceeding in court on November 2, 1948, and filed for record on November 26, 1948, eight days after the signing of the sales contract with the petitioner. The Goldbergs knowingly and wilfully inserted the wrong description in the sales contract with the intent to defraud the petitioner and did defraud him. When the petitioner's attorney informed M. Goldberg of the situation, M. Goldberg stated to the said attorney that he would have to be perfected through Sam Goldberg. Thereafter Sam Goldberg agreed to and acquiesced in the substitution of the Gould tract and perfection of title. The petitioner requested Sam Goldberg to put the agreement in writing, but he refused to do so and appointed Casper Wiseman as trustee under the aforementioned deed to secure debt, and the said trustee advertised the property to be sold at public outery on Tuesday, April 4, 1949. The petitioner, by and with the consent of the said Goldbergs, went into possession of the Gould tract shortly after the execution of the sales contract heretofore mentioned and has expended approximately the sum of $1000 in improvements thereon. It was well known to Bert S. Goldberg, Sam Goldberg, and M. Goldberg that it was the Gould tract which the petitioner was interested in and desired to purchase, and did agree to purchase; that Sam Goldberg had acted as agent for Bert Goldberg in lending her money to owners of the land; that the representations made to the petitioner were calculated to deceive and mislead the petitioner, and did deceive and mislead him into signing the contract hereinbefore mentioned, going into possession of the Gould tract, and in clearing and making improvements thereon. The petitioner is without adequate remedy at law. The damages sustained and to be sustained are irreparable, the exact amount being incalculable. he has been damaged in the sum of $1000 in that, after the execution of the sales contract, and within sixty days, by and with the consent of the Goldbergs, the petitioner went into possession of the Gould property, made extensive improvements thereon in clearing the land by digging and removing stumps, brush, and undergrowth at an expense of $1000. The said Goldbergs are privies, persons actually interested in the property, and are related to one another and have a common interest in the promotion of the interest of each, and did conspire to defraud the petitioner, and did defraud him, by representing to him and his attorney, A. L. Purvis, that they had title to the property and would convey it to the petitioner, but that it would take a few days to clear the title which would have to be done thorough Sam Goldberg. Sam Goldberg stated, in a conversation with the petitioner's said attorney, that the title would be cleared before the consummation of the sales agreement, and relying on the representation made by the said Goldbergs, and with their knowledge and consent, the petitioner went into possession and made extensive improvements to the same in money and labor. The said Goldbergs can, without hardship, convey the property to the petitioner in accordance with the sales agreement.

The prayers were: 1. That a rule nisi be issued. 2. That the defendants, and each of them, be temporarily restrained from exposing the property for sale or altering its status. 3. That the defendant, Casper Wiseman, as trustee, be likewise temporarily restrained. 4. For general relief. 5. For process.

Mrs. Bert Goldberg, M. Goldberg and Sam Goldberg demurred generally to the petition as amended on the grounds in substance that no cause of action was set forth against them for specific performance or for damages. They also demurred on several special grounds. The court sustained the general demurrers and dismissed the action, holding that, for reasons which will be stated in the opinion, infra, Casper Wiseman had ceased to be a material party defendant. The petitioner excepted to the judgment sustaining the general demurrers and dismissing the action.

WORRILL, J.

The plaintiff in error states in his brief that upon a hearing the trial court declined to grant an order temporarily restraining public sale of the Gould property, and correctly shows that, the sale having taken place, the question of specific performance is now moot. The defendants in error do not deny this and apparently agree that such question is moot. The petitioner seeks no relief under the written contract containing a description of property which he did not purport to buy, and which description he does not attempt to have reformed. His complaint is that he bought other property, the Gould tract, which had become unavailable at the time of the hearing on demurrers, and he asserts in the petition as amended that he has been damaged by the breach of the agreement to convey, and the alleged fraud and deceit of the defendants. The only agreement for the sale of the Gould tract was an oral one, and, hence, no valid contract was entered into, as necessarily a contract for the sale of land must be in writing. Code, § 20-401 (4). The plaintiff in error recognizes this principle of law, but insists that with the consent of the defendants he went into possession of the Gould tract within sixty days after the written contract for the Joyner tract was signed, and spent large sums of money for improvements thereon, and he relies on these facts as showing part performance under the Code, § 37-802. It clearly appears, however, that he was not put in possession by the owner, who was known to be Southern Furniture Specialties Company. His possession was merely by consent of non-owners, one of whom held a security deed to the property in question. He neither paid nor offered to pay for the property the price orally agreed upon. Obviously he does not bring himself within the provisions of § 37-802, upon which he relies, and which states the circumstances that would place a purchaser outside of the statute of frauds with respect to the sale of land, namely, "Full payment alone accepted by the vendor, or partial payment accompanied with possession, or possession alone with valuable improvements." His expenditure of money for valuable improvements is not alleged to have been done except on his own judgment, and, properly construed, the petition shows that he knew that the title was still in Southern Furniture Specialties Company and not in anyone involved in any oral agreement. Nor could he be confident, merely because Sam Goldberg held a security deed and stated that he would foreclose it and place title to the Gould property in the petitioner, that any of the defendants could in all events become the purchaser. It clearly appears that he was the author of his own misfortune in entering into possession as a trespasser and hazarding the chance of becoming the owner of property as to which there had been no warranty of title. See Code, § 29-302. No cause of action was set forth by the petition for damages because of an alleged breach of contract.

Nor do the allegations of the petition as amended, as to what the defendants, after the execution of the written contract for the Joyner property, promised to do with reference to putting title in the petitioner to the Gould property, constitute a basis for awarding damages for alleged fraud and deceit. Representations which authorize an action for fraud and deceit must be made with reference to existing or past facts and not to future acts. Crozier v. Provident Life Accident Ins. Co., 53 Ga. App. 572 ( 186 S.E. 719); Thigpen v. Harbison-Walker c. Co., 55 Ga. App. 397, 405 ( 190 S.E. 378); Snow's Laundry c. Co., v. Georgia Power Co., 61 Ga. App. 402 (3) ( 6 S.E.2d, 159).

The court did not err in sustaining the general demurrers of Bert Goldberg, M. Goldberg, and Sam Goldberg; and since Casper Wiseman had ceased to be a material and necessary party defendant after the sale of the property in question, the court properly dismissed the action as to all defendants.

Judgment affirmed. Sutton, C. J., and Felton, J., concur.