Opinion
20648, 20649.
ARGUED SEPTEMBER 16, 1959.
DECIDED OCTOBER 9, 1959.
Specific performance. Cobb Superior Court. Before Judge Manning. June 22, 1959.
Holcomb Grubbs, for plaintiffs in error.
Vernon W. Duncan, contra.
1. "A petition for specific performance of a contract for the sale of land, is sufficient as against general demurrer, where it is alleged that the contract is in writing, signed by both of the parties, is certain and fair, and is for an adequate consideration and capable of being performed. Code § 37-801; Clark v. Cagle, 141 Ga. 703 ( 81 S.E. 21, L.R.A. 1915A, 317); Irvin v. Locke, 200 Ga. 675, 676 ( 38 S.E.2d 289)." Scheer v. Doss, 211 Ga. 7, 8 ( 83 S.E.2d 612). In this case it is alleged that the contract sought to be specifically performed is in writing, signed by the necessary parties, is certain and fair and for an adequate consideration. As to whether it is capable of being performed, the petition seeks to cancel the deed from Frank J. Fleischer to Robert E. Fleischer on the ground that it is without consideration, and that it was executed as a result of a fraudulent conspiracy between Frank J. Fleischer and his son, Robert E. Fleischer, to defeat the plaintiff's right to the property; and asks that it be canceled and set aside, which can be effected in this proceeding, after which Frank J. and Addie May Fleischer will be in position to perform their contract to convey the property. The petition alleges a cause of action for specific performance and is not subject to general demurrer on this ground.
2. The contract in writing for the sale of the land made by Frank J. Fleischer and Addie May Fleischer to Weeks was assignable, and the assignment of the contract by Weeks to the plaintiff vested in him all the rights of Weeks including the right of suit. See Evans v. Brown, 196 Ga. 634, 639 ( 27 S.E.2d 300), and Code sections and cases there cited, and Mangum v. Jones, 205 Ga. 661, 665 ( 54 S.E.2d 603).
3. The petition is not subject to demurrer on the ground that it is multifarious and duplicitous, or that there is a misjoinder of parties or causes of action. "The defenses of multifariousness and duplicity are not favored by courts of equity. City Bank of Macon v. Bartlett, 71 Ga. 797; Martin v. Brown, 129 Ga. 562, 568 ( 59 S.E. 302); Bridges v. Donalson, 165 Ga. 228, 231 ( 140 S.E. 497). `A bill is not multifarious because all of the defendants are not interested in all of the matters contained in the suit. It is sufficient if each party has an interest in some matter in the suit which is common to all, and that they are connected with the others.' Blaisdell v. Bohr, 68 Ga. 56 (2)." Mankin v. Bryant, 206 Ga. 120, 138 ( 56 S.E.2d 447). All the defendants are necessary parties in this case, to effect the prayer of the petition that specific performance of the contract of sale and conveyance of the property to the plaintiff be decreed. Frank J. and Addie May Fleischer signed the contract agreeing to sell to Weeks and executed to him a warranty deed of the property, which was delivered to the defendant Covington, attorney and agent of Dempsey and Todd, doing business as J. L. Todd Auction Company, which deed they refused to deliver to the plaintiff. This deed is outstanding and the petition prays that these defendants be required to deliver it into court with such action as is necessary to place title in the plaintiff. There is an outstanding deed to the property in the hands of Robert E. Fleischer, which the petition seeks to set aside and cancel. The original contract of sale was made to Weeks, who transferred his interest therein to the plaintiff, and he is the grantee in the deed held by Covington. It is clear, therefore, that all the defendants are necessary parties to this action, and that full and complete relief in this equitable proceeding may be granted only where all these parties are before the court. There is a nexus common to all parties. "Where the plaintiffs have a common interest against all of the defendants in a suit as to one or more of the questions raised by it, so as to make them all necessary parties for the purpose of enforcing that common interest, the circumstance of some of the defendants being subject to distinct liabilities in respect to different branches of the subject-matter, will not render the bill multifarious." City Bank of Macon v. Bartlett, 71 Ga. 797 (1), supra. See Wells v. Strange, 5 Ga. 22 (1). 4. While there must be a tender of the purchase price before equity will decree specific performance of a contract for the sale of land, where, as here, the petition alleges that the defendants, when notified by the plaintiff that he had purchased from Weeks his contract with them for the sale of the property, repudiated the contract, notified him that they had no intention of complying with its terms, and that they would refuse to accept the tender of any money under the contract, the tender is waived. Finney v. Blalock, 206 Ga. 655, 660 (3) ( 58 S.E.2d 429), and cases cited.
5. There is no merit in the demurrer alleging laches on the part of the plaintiff in delaying two years in bringing this petition, in view of the allegation in the petition that he had been unable to bring this action for specific performance by reason of an action filed by Weeks against the plaintiff and the two Fleischers, J. L. Todd, and Sproull Dempsey, which litigation involved the issues and parties hereto and which did not terminate until October 9, 1958, in favor of the plaintiff, the court holding that Weeks, having transferred his interest in the contract to the plaintiff, had no right to maintain an action thereon. The plaintiff could not decline to litigate in the suit, in which he had already been brought into court as a defendant, by filing another independent suit. McCall v. Fry, 120 Ga. 661 ( 48 S.E. 200); Clay v. Smith, 207 Ga. 610 (2) ( 63 S.E.2d 602); Jeffrey McElreath Mfg. Co. v. Hill, 212 Ga. 183 (1) ( 91 S.E.2d 337). He was not guilty of laches in awaiting the outcome of the pending litigation before filing this action. Furthermore, the petition failed to allege facts showing that there had been such long delay in bringing suit as to make ascertainment of the truth difficult, as required under Code § 37-119.
6. The demurrer of the defendants Todd, Dempsey, and Covington, that no affirmative relief is prayed against them, is without merit since the petition does pray that the outstanding deed from the two Fleischers to Weeks, which is in their possession, be delivered into court for such action as the court may deem necessary to decree title in the plaintiff.
7. There is no merit in the several other demurrers.
Judgments affirmed. All the Justices concur.
ARGUED SEPTEMBER 16, 1959 — DECIDED OCTOBER 9, 1959.
W. H. Bivins brought his petition in the Superior Court of Cobb County against Frank J. and Addie May Fleischer; J. L. Todd and Sproull Dempsey, doing business as J. L. Todd Auction Company; Dean Covington; James C. Weeks; and Robert E. Fleischer, alleging that on April 17, 1956, Frank J. and Addie May Fleischer entered into a contract with the J. L. Todd Auction Company to sell The Pines Motor Court, the property described in a deed recorded in the office of the Clerk of the Superior Court of Cobb County in Deed Book 241, page 536; that, pursuant to said contract, J. L. Todd Auction Company did at public outcry sell the property to James C. Weeks; that Frank J. and Addie May Fleischer executed a contract of sale of the property to James C. Weeks, under the terms of which they agreed to convey the property to him for stated considerations; that subsequently Frank J. and Addie May Fleischer executed a warranty deed to the property, which was delivered to Dean Covington, an attorney and agent for J. L. Todd Auction Company; that thereafter James C. Weeks transferred and assigned all his right, title, and interest in the contract of sale to him; that, under the contract of sale, the purchase price was $28,000, of which $7,000 was paid in cash by Weeks, the balance of $21,000 to be paid within thirty days upon the Fleischers' furnishing good and marketable title to said property; that the $7,000 was paid in cash to the Fleischers at the time of the signing of the contract; that the defendants Todd, Dempsey, Covington, and Frank J. and Addie May Fleischer have entered into a fraudulent agreement among themselves not to deliver the said warranty deed to the plaintiff; that Robert E. Fleischer, the son of Frank J. and Addie May Fleischer, entered into a conspiracy with his mother and father, under which they made to Robert E. Fleischer a deed to the property on October 10, 1958, which deed was without consideration and made for the fraudulent and illegal purpose of defeating the plaintiff's rights to said property; that Frank J. and Addie May Fleischer, who have been in possession of said property since the sale, and have been receiving the rents and income from it, are committing waste by permitting the property to deteriorate and by not keeping it in repair; that the reasonable rental value of said property is $25 per day; that the plaintiff has not been able to file this action heretofore because James C. Weeks had instituted in the Cobb Superior Court an action pertaining to the same subject matter against Frank J. and Addie May Fleischer, Todd, Dempsey, and the plaintiff; and that said litigation was not terminated until October 9, 1958, at which time it was determined that Weeks, having assigned his interest in the subject matter of the suit, had no right to bring the action; that, after the plaintiff had purchased the rights of James C. Weeks in the contract with the Fleischers, he notified them of said purchase, and they repudiated the contract and notified him that they had no intention of complying with its terms, and that they would refuse to accept the tender of any money under the contract.
After praying for process and service, the plaintiff prayed that the defendants Todd and Dempsey, doing business as J. L. Todd Auction Company, and/or Dean Covington be required to deliver into court the warranty deed executed by the Fleischers, dated June 5, 1956, and to deliver such other documents as might be necessary to convey marketable title to the property; that Frank J. and Addie May Fleischer be required to specifically perform the contract of sale of June 5, 1956, and to deliver the documents necessary to convey legal title to the plaintiff; that James C. Weeks be required to specifically perform his contract and to execute and deliver necessary documents to convey legal title to the plaintiff; that the plaintiff recover of the defendants Frank J. and Addie May Fleischer the rental value of the property; and that the deed executed by Frank J. and Addie May Fleischer to Robert E. Fleischer be set aside and declared null and void.
To the petition as amended, the defendants Sproull Dempsey and J. L. Todd, doing business as J. L. Todd Auction Company, and Dean Covington filed separate general and special demurrers; and the defendants Frank J. Fleischer, Addie May Fleischer, and Robert E. Fleischer filed their general and special demurrers to the petition as amended. To an order of the trial judge overruling all the demurrers filed by all parties, the defendants Todd, Dempsey, and Covington filed exceptions to this court; and the defendants Frank J. Fleischer, Addie May Fleischer and Robert E. Fleischer filed their separate bill of exceptions. The demurrers of the parties raised substantially the same issues; and, although two separate bills of exceptions were filed, each of the plaintiffs in error is represented by the same attorneys, who filed identical briefs. Accordingly, both cases can be decided in one opinion of this court.