From Casetext: Smarter Legal Research

Lively v. Lively

Supreme Court of Georgia
Mar 15, 1950
206 Ga. 606 (Ga. 1950)




Specific performance. Before Judge Guess. DeKalb Superior Court. September 16, 1949.

Carl T. Hudgins and Stephens Mitchell, for plaintiff in error.

Augustine Sams, contra.

1. The amendment of the petition for specific performance of the contract for the sale of land, which expressed the purchasers' willingness to accept less than the whole tract if the defendant, for want of title, could not convey the whole tract, was in accord with Code § 37-806, which gives the purchaser such rights, and was properly allowed over objection.

2. The decree of specific performance conforms to the prayer and the verdict. It is not subject to attack upon the ground that it does not conform to the contract. The contract was in evidence, and this complaint can be urged only in an attack upon the verdict under the general grounds.

3. The contract of purchase makes the purchase-money payable when the title has been approved by the purchaser. There was evidence to show that the survey was delayed due to inability to secure a surveyor. The sale was by the acre, and this made a survey necessary before the sale could be consummated. Because of this evidence the judge instructed the jury to determine if interest should be charged. On the previous appearance ( Lively v. Munday, 201 Ga. 409, 40 S.E.2d 62), the pleadings showed these same facts, but it was held that the purchase-money should draw interest from January 15, 1945, which was the date the purchasers took possession. That decision is the law of the case, and it controls here. It thus requires the addition of interest at the rate of 7 percent per annum on the principal from the date the purchasers took possession. It would be useless to go through a trial of the entire case, since the verdict has fixed the principal, and it remains only to add the interest thereon as herein indicated. Therefore, direction is given that the judgment be amended by adding the interest thereto.

4. Neither the plat nor the oral testimony of the county surveyor concerning the same, wherein both show the boundaries of the tract of land involved, were subject to the motion to exclude upon the ground that the surveyor testified that he did not actually measure some of the boundaries, but accepted the distances thereof as shown by a plat made by another surveyor. Both the plat and the oral testimony were admissible to show the boundaries of the tract of land, and since the land was sold by the acre, this evidence with which the verdict is in accord gives the defendant pay for many more acres than his own testimony shows that he was entitled to. He was not injured by the evidence, even though it might have been subject to the objection, and therefore no reversible error is shown.

5. The court did not err, as contended, in charging that, if the defendant made the contract, possessed mental capacity at the time, understood his act, and admitted making the contract, that if the price was fair, and that if the purchasers were allowed to enter into possession, and to make valuable improvements, the jury would be authorized to return a verdict enforcing the contract. Nor did the court err in charging that fraud which would relieve the defendant must be fraud of the plaintiffs or their agent. Lewis v. Foy, 189 Ga. 596 ( 6 S.E.2d 788). There is no merit in special grounds 4, 5, 6, and 7.

6. Nor was it error to charge that, if the jury found that the petitioners were entitled to have specific performance of the contract, the defendant could not refuse performance because some third person claimed a portion of the land.

7. The evidence authorized the jury to find in favor of the petitioners, and the verdict so finding is not subject to attack by the general grounds of the motion for new trial, which challenges only the sufficiency of the evidence.

No. 16902. FEBRUARY 17, 1950. REHEARING DENIED MARCH 15, 1950.

This case is one for specific performance of an alleged contract for the sale of land. On the first appearance of the case in this court ( Lively v. Munday, 201 Ga. 409), the trial court was reversed upon an overruling of a general demurrer to the petition. The plaintiffs, having taken possession immediately and the terms of the contract being cash, had alleged a tender which was insufficient for the reason that unauthorized deductions for the expenses of a survey and revenue stamps had been made, and the plaintiffs had not offered to pay interest.

Before the remittitur of this court was made the judgment of the trial court, the plaintiffs amended their petition to meet the rulings made. Thereafter, upon the trial of the case, a jury returned a verdict, in which title to the land was decreed as claimed by the plaintiffs, and the defendant recovered $5545 purchase money without interest thereon.

A motion for a new trial as amended, alleging numerous errors, was overruled. The motion contained, in addition to the general grounds, eight special ones in which six are attacks upon the charge of the court and the others allege errors in failing to exclude certain evidence.

There was sufficient evidence produced to prove the case in accordance with the pleadings. There was also evidence showing that a correct survey as contemplated by the contract could not be made immediately, and on this point the judge instructed the jury to determine whether or not interest on the purchase-money at the legal rate should be paid by the petitioners from any specified time. The plat and survey introduced in evidence showed that the number of acres was 221.8, but on cross-examination the surveyor testified that he did not measure two of the lines and accepted measurements thereof as made by another surveyor. However, the defendant testified that the tract contained 176 or 186 acres, and that if he was paid at the contract price per acre for the acreage shown by the plat, he would receive more consideration than he was entitled to receive.

The exceptions here are to the judgment overruling the amended motion for new trial and upon the exceptions pendente lite filed previously.

Headnotes 1, 2, 3, 5, 6, and 7 require no further elaboration. However, a further discussion of headnote 4 will be made here for clarification, in view of the admission of the county surveyor that he did not himself measure the north and east lines, but obtained the distances accredited to such lines from a survey made by someone else. Neither his oral testimony nor the plat of the survey made by him, based upon such data, was competent evidence to prove the number of acres in the tract of land referred to. His testimony and plat, in this respect, were not admissible as the opinion of an expert under Code § 38-1710. Surveying is in no sense a question of opinion and, regardless of the skill of a surveyor, he accomplishes his work by the use of instruments whereby exact courses and distances are fixed, and from these, precise mathematical calculations are made. To substitute opinion for facts at any point, nullifies the entire process. Nor could this surveyor as a nonexpert witness testify as to his opinion as to the distances of the boundary lines, after giving as a factual basis therefor distances that he had seen on a plat made by someone else. The decision in Clifton v. State, 187 Ga. 502 ( 2 S.E.2d 102), cited by counsel for the defendants in error, is no authority for admitting such opinion evidence of a nonexpert which has no relevant factual basis.

However, both the plat and oral testimony of the surveyor are definite in fixing the boundaries of the land here involved, and they were admissible for the purpose of establishing these facts. Therefore the objection to the plat as a whole, and to the testimony relating to the plat as a whole was properly overruled, since these portions were admissible. However, assuming but not conceding that they were inadmissible, the plaintiff in error is in no position to complain. The only possible way that either might injure the plaintiff in error, who was the seller at a fixed price per acre, is if the number of acres thereby shown would be less than the number for which he is entitled to receive pay. On this point, this evidence fixes the number of acres in the tract at 221.8 acres, while the plaintiff in error testified that it contains about 176 or 186 acres, his exact testimony being, "There was about 176 or 186 acres." He further stated, "If a survey reveals that there is over 200 acres there, then by reason of that survey I am getting the benefit of that extra consideration." Thus is it demonstrated by the record that this plaintiff in error is not injured, but is very definitely benefited by the evidence of which he complains. His complaint, therefore, is not well founded, and shows no ground for a new trial. Reeves v. Lancaster, 159 Ga. 540 ( 126 S.E. 480).

For reasons stated in headnote 3, direction is given that interest at 7 percent per annum on the purchase-money from January 15, 1945, be added to the principal found by the jury.

Judgment affirmed with direction. All the Justices concur.

Summaries of

Lively v. Lively

Supreme Court of Georgia
Mar 15, 1950
206 Ga. 606 (Ga. 1950)
Case details for

Lively v. Lively

Case Details

Full title:LIVELY v. LIVELY et al

Court:Supreme Court of Georgia

Date published: Mar 15, 1950


206 Ga. 606 (Ga. 1950)
58 S.E.2d 168

Citing Cases

Plemons v. Belcher

cific performance is not a remedy which may be claimed as a matter of right ( Kirkland v. Downing, 106 Ga.…

Chatham Amusement Co. v. Perry

Clark v. Cagle, 141 Ga. 703 ( 82 S.E. 21, L.R.A. 1915A 317); White-head v. Dillard, 178 Ga. 714, 715 ( 174…