Opinion
34278.
DECIDED NOVEMBER 21, 1952.
Complaint; from Whitfield Superior Court — Judge Paschall. August 4, 1952.
Richard H. Sapp Jr., Sanford P. Carr Jr., Stafford R. Brooke, for plaintiffs in error.
Malcolm C. Tarver, contra.
1. Where it was alleged that the defendant, with intent to defraud the plaintiffs, represented to them that a certain tract of land which he offered to sell to them and which he did sell to them contained 109 acres, when he knew he did not own more than half of the acreage represented, and where it was alleged that the plaintiffs, believing and relying on the defendant's false representations as to the acreage of the tract, purchased the land from him, which was described as containing 109 acres, more or less, but which in fact contained only 49.9 acres, these allegations were sufficient to charge the defendant with actual fraud, and the deficiency in quantity was so gross as to authorize submission of the question of fraud to a jury; and, under the facts alleged in the petition, the plaintiffs are not precluded from recovering an apportionment according to relative value of the purchase price paid because of the amendment to the petition as to their going upon the land prior to its purchase.
2. The plaintiffs' second amendment to their petition was not too late, as it was filed before the final ruling of the court on the defendant's demurrers after the petition was amended.
3. The court erred in sustaining the general demurrer to the amended petition and in dismissing the action.
DECIDED NOVEMBER 21, 1952.
Henry and Mrs. Veta Cates filed this suit in Whitfield Superior Court against J. F. N. Owens, seeking a recovery for an apportionment of the purchase price, according to relative value, for a deficiency in quantity of land which they had purchased from the defendant, it being alleged that the defendant had defrauded them of $5577.60 by reason of the facts alleged in the petition. The petition alleged substantially: (6) that the defendant, on April 25, 1950, sold to the plaintiff the tract of land described as follows: "A certain tract or parcel of land in Land Lot Number 11, 13th District and 3rd Section of Whitfield County, Georgia, same containing 109 acres, more or less, and bound as follows: On the north by the Stacy property, and on the west by the property of Maddox, Miller, Carter, and Sweeney, on the south by Henry C. Crump, and the public road known as Riverbend Road, on the east by property of Glenn Chance and property of Walter Peek. Above lands being all the lands conveyed to grantor by deed by D. H. Herrod in deed dated 28th day of January, 1941, except those portions heretofore sold Henry C. Crump. See deed book 30, page 170, Deed Records of Whitfield County, Georgia"; (7) that, prior to this sale, the defendant told the plaintiffs that said tract of land contained 109 acres; (8) that, on January 28, 1941, the defendant purchased from D. H. Herrod a tract of land in Land Lot 11, 13th District and 3rd Section of Whitfield County, Georgia, said tract containing 112 acres more or less; (9) that, prior to said sale to the plaintiffs, the defendant knowingly and with intent to defraud the plaintiffs told them that the tract of land being offered was the entire tract of land sold to the defendant by D. H. Herrod, in 1941, except three acres sold to the defendant's son-in-law, Henry C. Crump; (10) that, relying on and believing the defendant's representations that said tract contained 109 acres, the plaintiffs purchased said tract from the defendant and paid him $4000 and five lots in the Airport Subdivision, on which there were two houses having a value of $5500, making a total of $9500 paid for the 109-acre tract; (11) that, at the time of the sale to the plaintiffs, the defendant did not own more than half of the original 112 acres purchased from D. H. Herrod, and the defendant knew at the time he made said representations to the plaintiffs that he did not own more than half of the original 112 acres; (12-14) that, in 1946, the defendant had sold off of said 112 acres, purchased from D. H. Herrod, 37 1/2 acres, more or less, to V. H. Davis, and approximately 30 acres thereof to Onnie Davis, and had sold off of said 112-acre tract two other small tracts to two other persons named in the petition; (15) that the plaintiffs would not have purchased said tract of land except they believed and relied on the defendant's representations; (16) that the tract of land sold by the defendant to the plaintiffs contained only 49.9 acres; and (17) that the deficiency in the number of acres in the said tract of land was and is so gross as to justify the suspicion of wilful deception or mistake amounting to fraud, the deficiency amounting to more than half of the number of acres called for by the said deed from the defendant to the plaintiffs. Paragraphs 18, 19, and 20 of the petition related to a separate tract of land, which the plaintiffs sought to restrain the defendant from disposing of until this suit was terminated. Special demurrers to these three paragraphs were sustained, and they were stricken from the petition. The prayer of the petition was for process, that the purchase price of said tract of land be apportioned according to relative value, and that the plaintiffs recover $5577.60 for the deficiency in acreage.
The defendant demurred generally and specially to the petition, the general demurrer being to the effect: (1) that the petition set out no cause of action against the defendant nor any basis for recovery of any amount against him; (2) that the petition sounds in tort and shows upon its face that the sale of lands therein described was a sale by the tract and not by the acre; and (3) that the essential elements of alleged fraud, justifying recovery by the plaintiffs against the defendant, are not alleged in the petition. Paragraph 5 of the special demurrer, to paragraphs 18, 19, and 20 of the petition, was sustained, and said paragraphs were stricken, as above stated.
Paragraph 7 of the special demurrer was that the petition attempts to set up in one count separate and distinct causes of action, one arising through alleged constructive fraud, and the other arising through alleged actual or legal fraud, and that two such inconsistent causes of action cannot be properly joined in the same count. The court, in passing upon the demurrers on July 1, 1952, ordered that the plaintiffs amend within ten days to meet the criticism of ground 7 of the special demurrer, and ordered further that the plaintiffs amend within ten days so as to allege whether or not they examined the land purchased before purchase or were prevented by any fraud of the defendant from making such examination, and ordered that, in default of such amendments, the petition be dismissed.
On July 8, 1952, the plaintiffs amended their petition by striking paragraph 17 and inserting in lieu thereof paragraph 17 as follows: "That a deficiency of 59 acres in a tract of 109 acres is so gross as to entitle plaintiffs to an apportionment of price according to relative value under section 29-201 (4122) of the Georgia Code, if defendant is found guilty of actual fraud in misrepresenting the acreage," and by adding the following as paragraph 21: "That plaintiffs did go upon the land in question prior to purchase and defendant did show Henry Cates two of the corners of said property, but no measurements were made, and defendant did not prevent plaintiffs from measuring said lands except by said defendant's representation to plaintiffs that said farm contained 109 acres, and was all the land said defendant had bought from D. H. Herrod except about three acres he had sold to his son-in-law, Henry Crump." This amendment was allowed, subject to demurrer.
On July 16, 1952, the plaintiffs further amended their petition by striking all of paragraph 17, as amended on July 8, 1952, and inserting in lieu thereof paragraph 17 as follows: "That, under the foregoing allegations, the defendant is guilty of actual fraud, so as to entitle plaintiff to an apportionment of price according to relative value under section 29-201 (4122) of the Georgia Code Annotated." This amendment was allowed, subject to demurrer.
On July 21, 1952, the defendant demurred generally and specially to the petition as amended, and on said date the court sustained the general demurrer and dismissed the petition. The exception here is to that judgment.
The plaintiffs' petition as amended alleged in substance that they purchased from the defendant a certain described tract of land, and that, prior to such sale, the defendant told the plaintiffs that said tract of land contained 109 acres and was all of the 112-acre tract that he had purchased from D. H. Herrod on January 28, 1941, except three acres which he had sold off to his son-in-law, Henry C. Crump. It is alleged that the defendant, knowingly and with the intent to defraud the plaintiffs, told them that said tract of land being offered was the entire tract of land sold to him by D. H. Herrod in 1941, except the three acres sold off by him to Henry C. Crump, and the defendant knew at the time he made said representation to the plaintiffs that he did not own more than half of the 112-acre tract; that the plaintiffs, relying on and believing the defendant's representations that said tract of land contained 109 acres, purchased the same and paid him therefor $9500 in cash and property, and they would not have purchased said tract had they not believed and relied upon the defendants' representations as to the acreage thereof; and "That, under the foregoing allegations, the defendant is guilty of actual fraud, so as to entitle plaintiff to an apportionment of price according to relative value under section 29-201 (4122) of the Georgia Code Annotated."
The tract of land conveyed to the plaintiffs by the defendant contained only 49.9 acres, this being less than half the number of acres he represented the tract to contain; and it was alleged that the plaintiffs were deceived and defrauded by the misrepresentations of the defendant as to the quantity of land he sold to them.
Code § 29-201, in regard to a deficiency of quantity in the sale of lands, provides: "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 allegations of the petition in the present case charge the defendant with actual fraud. It was held in Emlen v. Roper, 133 Ga. 726 (2) ( 66 S.E. 934): "A material representation falsely made by a vendor to a vendee to induce a sale, and made with a knowledge of its falsity, amounts to actual fraud," and in the opinion in that case, on page 729, it was ruled: "In the present case it is alleged that the vendors' representation at the time of the sale of the number of acres was not only false, but false within the knowledge of the vendors, and was acted upon by the vendee to her injury. This is a charge of actual fraud." That ruling is applicable and directly in point in the present case. In Seymore v. Rice, 94 Ga. 183, 185 ( 21 S.E. 293), the deed from Rice to Seymore described the land as containing 170 acres, more or less, and the tract really contained only 119 acres, there being a deficiency of 51 acres. It was there ruled: "The deficiency of 51 acres in a tract of this size was quite considerable, and it was the province of the jury, and not of the court, to say whether or not Rice was guilty of actual and willful deceit in making the sale." It was held in Bryan v. Yates, 7 Ga. App. 712 ( 67 S.E. 1048): "Where a deed to land described the quantity of acres conveyed as being `80 acres, more or less,' and there was an alleged shortage of 26 acres, it was for the jury, and not for the court, to say whether this deficiency was so gross as to authorize a rescission of the contract, or an apportionment of the purchase-price, under § 3542 of the Civil Code." In Owens v. Durham, 9 Ga. App. 179 ( 70 S.E. 989), where the deed recited that the number of acres conveyed was 102 1/2, more or less, and there was a deficiency of approximately 41 acres, it was held: "This deficiency was so gross as to warrant the jury in believing that there was a mistake amounting to fraud." For principles ruled in other cases which are applicable to the case at bar, see Estes v. Odom, 91 Ga. 600 ( 18 S.E. 355); Stockburger v. Brooker, 33 Ga. App. 676 (3, 4, 5) ( 127 S.E. 663); Marchman v. Security Loan Abstract Co., 45 Ga. App. 625 ( 165 S.E. 884).
The fact that the plaintiffs, in response to an order of the court in a ruling on demurrer, amended their petition by alleging that they did go upon the land in question prior to the purchase, and that the defendant showed them two corners of the property, but that no measurements of the land were made, and that they were not prevented from measuring it, except by the representation by the defendant that said tract of land contained 109 acres and was all of the 112-acre tract of land which the defendant had bought from D. H. Herrod except three acres sold to Henry C. Crump, did not render the petition subject to be dismissed on general demurrer. It was ruled in Estes v. Odom, 91 Ga. 600 (4) (supra): "Previous knowledge of the land or of its boundaries would not preclude the vendee from recovering for fraudulent misrepresentation of quantity, if without fault on his part he was actually deceived and defrauded by the misrepresentation, provided the deficiency was more than could be fairly covered in the given instance by the phrase `more or less.'" This principle was again ruled in Stockburger v. Brooker, 33 Ga. App. 676 (supra), and in Marchman v. Security Loan Abstract Co., 45 Ga. App. 625 (supra).
The cases cited by counsel for the defendant in error are distinguishable on their facts from the case at bar. In Tallant v. Crim, 19 Ga. App. 16 ( 90 S.E. 742), the misrepresentations relied upon were as to the character and value of the land. In Newbern v. Milhollin, 31 Ga. App. 247 ( 120 S.E. 637), the vendee in his plea sought an abatement in the purchase price by reason of alleged false statements by the vendor that the land in question was free from Bermuda grass. It appears that the vendee made his own examination of the land prior to its purchase while riding over the land with the vendor in an automobile. It was ruled that, since it appeared that a casual, passing examination at the time of the inspection would have disclosed the presence of the Bermuda grass with which, the record indicates, the defendant was familiar, the verdict for the vendor was demanded by the evidence. In Bivins v. Tucker, 41 Ga. App. 771 ( 154 S.E. 820), s.c., 42 Ga. App. 254 ( 155 S.E. 533), constructive fraud, and not actual fraud, was relied upon. Kendall v. Wells, 126 Ga. 343 ( 55 S.E. 41), and King Lumber Co. v. Cowart, 136 Ga. 739 ( 72 S.E. 37), are also distinguishable on their facts from this case, the rulings in those cases being to the effect that actual fraud is essential to a recovery in such cases.
2. The plaintiffs' second amendment, which was filed on June 16, 1952, was not too late, as it was filed before the final ruling of the court on the defendant's demurrers after the petition was amended. See Code (Ann.), § 81-1001; Ga. L. 1952, p. 243.
3. The court erred in sustaining the general demurrer to the petition as amended and in dismissing the action.
Judgment reversed. Felton and Worrill, JJ., concur.