Opinion
16255.
JULY 13, 1948.
Specific performance. Before Judge Carpenter. Jones Superior Court. April 20, 1948.
Bell, Justice, being absent because of illness, Judge Lilly was designated for this case.
J. W. Barnett and Harry S. Strozier, for plaintiff in error.
John R. L. Smith, contra.
The petition set forth a right in the petitioners, as assignees of a written option, to a reconveyance of described land upon the tender and offer to perform as made to the defendant, and the court did not err in overruling the motion to dismiss the action.
No. 16255. JULY 13, 1948.
G. L. Anderson and J. Pierce Anderson filed in the Superior Court of Jones County a petition against J. J. Barron alleging substantially the following: On February 17, 1945, W. W. Barron Jr. conveyed by warranty deed to J. J. Barron a described lot of land in Jones County, Georgia. The deed recited a cash consideration of $469.50 and contained the following paragraph: "This warranty deed carried this clause, is agreed by both parties in the warranty deed. That at any time within two years from date W. W. Barron Jr. or his heir W. W. Barron III has the privilege of paying above amount principal sum and legal rate of interest to redeem land in this warranty deed of 202 1/2 acres of land described above." On April 10, 1946, W. W. Barron Jr., Guy L. Anderson, and J. Pierce Anderson tendered to the defendant the amount of the consideration of the deed above stated, plus interest, plus taxes paid on the land by the defendant and interest thereon, and then stated to J. J. Barron that the petitioners were buying the said land from W. W. Barron Jr., and that the amounts tendered were for the purpose of redeeming the said land as provided in the deed of W. W. Barron Jr. The defendant thereupon refused to accept the money and denied that W. W. Barron Jr. or the petitioners had any right to redeem the land. On the same day W. W. Barron Jr., in consideration of $10 and other valuable considerations, including the assumption of a debt secured by a deed to the land, conveyed the said land to the petitioners. This deed contained the following recitals: "By virtue of the privilege of redemption within two years from February 17, 1945, this being the date I deeded to said J. J. Barron the above described property, I have this day tendered to J. J. Barron the principal sum of $469.50 and the sum of $38.40 interest, this being the legal rate of interest as contracted for, this sum being tendered to him in U.S. currency, and at the same time a quitclaim was presented to him to sign conveying the above-described property back to me, W. W. Barron Jr., and the said J. J. Barron fails and refuses to convey this property back to me according to agreement in the deed I gave him; now, I am selling and conveying to parties of the second part the above-described land, and conveying to them, for a valuable consideration, all rights, title, interest, and privilege of redemption that I may have by law or equity towards redeeming this property for themselves, their heirs and assigns as against the said J. J. Barron, his heirs and assigns. Party of the first part also tendered J. J. Barron all taxes paid on said property by him." A copy of the said deed, marked Exhibit "B," was attached to the petition and made apart thereof.
By virtue of this deed, as alleged, the petitioners became vested with all the rights, interests, and equities of W. W. Barron Jr. with respect to said land, especially those reserved to him by the part of his deed to the defendant that gave him the right to redeem the land, which was effectuated by the tenders above described. Thereafter, on September 6, 1946, the petitioners themselves tendered to the defendant the principal amount named in the deed from W. W. Anderson Jr. to the defendant, with interest and taxes, stating to the defendant that they had bought the land from W. W. Barron Jr., and had a conveyance of all his rights, titles, and interests with respect to it, and that the tenders were made for the purpose of redeeming the land as provided in the deed from W. W. Barron Jr. to the defendant. The defendant refused this tender, denying that the petitioners had any right to redeem the land or any right or interest concerning it. The petitioners aver that they are now ready, willing, and able to pay the said amounts, and they make their tender continuous.
The prayers were: that title to the land be decreed to be in the petitioners; that the defendant be required to specifically perform his contract to permit redemption of the land; that he be required to execute a deed to the petitioners without warranty of title; and for general relief.
On the call of the case for trial, the defendant moved orally to dismiss the petition on the ground that it set forth no cause of action. The exception here is to the judgment overruling the defendant's motion to dismiss.
(After stating the foregoing facts.) It is legally possible for one person to sell land to another at an agreed price, and at the same time reserve the right to repurchase it, and if actually made in good faith such a transaction is enforceable in equity. Felton v. Grier, 109 Ga. 320 ( 35 S.E. 175); Cowart v. Singletary, 140 Ga. 435 (2) ( 79 S.E. 196, 47 L.R.A. (N.S.) 621, Ann. Cas. 1915A, 1116). The allegations of the petition show a conveyance by W. W. Barron Jr. to J. J. Barron of described land, the deed containing an option in favor of the grantor and his heir, W. W. Barron III, to redeem the land within two years by paying the principal sum stated as the consideration for the deed and interest at the legal rate. Such a contract is authorized by the authorities above cited. It is shown by the petition that the grantor and the petitioners made a tender to the defendant, J. J. Barron, within the requisite period for the purpose of redeeming the land, but that the defendant refused to accept the tender, asserting that neither W. W. Barron Jr. nor the petitioners had any right to redeem the land. On the same day W. W. Barron Jr., for a valuable consideration, conveyed the land to the petitioner, together with all his rights, title, interest, and privileges of redemption of the said land. This constituted a proper and legal assignment of the option to redeem, the petitioners being subrogated to all the rights of W. W. Barron Jr. Code, § 85-1903; Robinson v. Perry, 21 Ga. 183 (68 Am. D. 455); Fulcher v. Daniel, 80 Ga. 74 ( 4 S.E. 259); Perry v. Paschal, 103 Ga. 134 ( 29 S.E. 703); Ross v. Glover, 156 Ga. 109, 114 ( 118 S.E. 691). "Where a contract for the sale of land is in writing signed by both parties, is certain and fair, is for an adequate consideration, and capable of being performed, it is as much a matter of course for a court of equity to decree the specific performance of it as it is for a court of law to give damages for a breach of contract." Clark v. Cagle, 141 Ga. 703 (1) ( 82 S.E. 21, L.R.A. 1915A, 317); Funk v. Browne, 145 Ga. 828 (1) ( 90 S.E. 64); Tolbert v. Short, 150 Ga. 413 (4) ( 104 S.E. 245); Lewis v. Trimble, 151 Ga. 97 ( 106 S.E. 101). See also Irvin v. Locke, 200 Ga. 675, 676 (1) ( 38 S.E.2d 289). As stated in Reeve v. Hicks, 197 Ga. 181, 197 ( 28 S.E.2d 649), quoting from 8 Thompson on Real Property, 506, § 4569, in reference to the legal significance of an option: "The owner does not sell his land; he does not then agree to sell it but he does then sell something, viz., the right or privilege to buy at the election, or option, of the other party. The second party gets in praesenti, not lands, or an agreement that he shall have lands, but he does get something of value; that is, the right to call for and receive land if he elects." Having this right to exercise the option, under the equitable principle announced in the authorities above cited, specific performance will be decreed if the contract be certain and just. The petition shows that the consideration to be paid for the redemption of the land was in the same amount as that for which the land was sold to the defendant, plus interest at the legal rate. Consequently, in equity it must be said that the contract was certain and fair, and that upon a proper tender and demand the petitioners would be entitled to the specific performance here sought. It is shown by the petition that after the transfer and assignment of his option to have the land reconveyed to him at any time within two years from February 17, 1945, which transfer and assignment of the option was recited in the deed from W. W. Barron Jr. to the petitioners, they made a tender to the defendant on September 6, 1946, in full conformity with the terms of the option. Their unconditional offer to perform entitles them to maintain the present action for specific performance, and the court did not err in overruling the motion to dismiss.
Judgment affirmed. Jenkins, Chief Justice, and Atkinson, Wyatt, Head and Candler, Justices, and Judge Lilly concur.