Opinion
17524.
SUBMITTED JULY 9, 1951.
DECIDED SEPTEMBER 10, 1951.
Petition for injunction. Before Judge Thomas. Coffee Superior Court. April 14, 1951.
Wilson Wilson, for plaintiffs.
Gibson Maddox, for defendant.
The terms and conditions of the bond for title here involved are such as to make time of the essence of the contract, and there is no allegation in the petition sufficient to constitute a waiver of the time element in the bond.
No. 17524. SUBMITTED JULY 9, 1951 — DECIDED SEPTEMBER 10, 1951.
Two brothers, Joel L. Smith and Josh L. Smith, and their mother, Clestelle W. Smith, filed a petition against Clyde W. Smith. A general demurrer thereto was sustained, and exceptions are to that judgment.
They allege: They are the sole heirs at law of their father and husband, J. L. Smith, who in 1926 secured a bond for title from J. R. Lipsey to certain described land, which was duly recorded, and under which J. L. Smith went into possession of the premises and so remained until his death in 1938. The bond for title was made in consideration of $800, $5 payable when executed on September 6, 1926, and the balance represented by three notes payable over a period of three years. Prior to his death, June 4, 1938, the grantee paid a substantial sum of money on the purchase price, though the exact amount so paid is unknown. Both the grantor and grantee died in 1938. Prior to his death, the grantee permitted his father, J. H. Smith, to reside with him upon the premises; and, after the death of the grantee, his father remained in possession and cultivated the land. In 1938 both the grantee and grantor of the bond for title died and there was no administration on the estate of either. After the death of both, J. H. Smith, the father of the grantee, on September 19, 1938, procured from the heirs at law of the grantor a warranty deed to the premises in question. In January, 1948, J. H. Smith transferred the premises by warranty deed to Clyde W. Smith, the defendant herein, who was the son of J. H. Smith and a brother of the original grantee in the bond for title. It was further alleged: that the grantor agreed and allowed the grantee to make payments upon the purchase price as he was able, and that at the time of the death of their father and husband, the grantee in the bond for title, the two sons, Joel and Josh, were minors, one having been born March 27, 1923, and the other August 28, 1925, and that this action is brought less than seven years subsequent to the attainment of their majority; that they had no knowledge that they were entitled to any interest in the land until just prior to the institution of the instant suit, when they were approached to execute quitclaim deeds to the premises; that said land is worth a great deal more than the original purchase price set forth in the bond for title and more than it was worth at the date of the death of the grantee; and that at the time of the deed from J. H. Smith to the defendant, which recites a consideration of $600, and at the present time the land is worth $7500. The petitioners also allege that they have offered to the defendant any sum that is found to be due, plus interest, less the yearly rental value of the land.
The prayers were for process, injunction, accounting, judgment, cancellation, and for a decree of title.
The controlling question here is whether the grantor in the bond for title had the right to rescind the contract and resell the property when the notes given for the purchase price had become due and unpaid.
The considerations of the bond here in question were: If the grantee "shall . . pay the said several sums of money at the times specified, then the [grantor] . . is bound to . . execute to the [grantee] . . a good and sufficient title; . . but on failure of the [grantee] . . to pay the said sums of money, or either of them at the time specified, then the said obligation to be void and of no effect." The plaintiff in error insists that the foregoing conditions do not make time an essence of the contract under Code § 20-704 (9), and that failure to pay the notes when due did not authorize a rescission of the contract by the grantor.
In McDaniel v. Gray Co., 69 Ga. 433, a bond for title there in question contained almost the identical language, to wit: "Now if [the grantee] . . shall well and truly pay said notes at the times above specified, then the [grantors] . . are bound to execute to [the grantee] . . a good and sufficient title; . . but on failure of [the grantee] . . to pay the aforesaid sums of money, or either of them, at the times therein specified, then the above obligation to be void and of no effect." It was there held that, upon failure of the grantee to pay, the grantor had the right to rescind the contract and, among other remedies of the grantor, was the right to re-enter and take possession where the premises were vacant. See also Dukes v. Baugh, 91 Ga. 33 ( 16 S.E. 219); Watkins v. Hendricks, 137 Ga. 330 ( 73 S.E. 581). In the instant case the place was not vacant, but was occupied by the person to whom the grantor sold the property and executed a deed. We can see no difference, in so far as this right to resell was concerned, in re-entering property that was vacant and in selling it to one in actual possession whose act in purchasing it was a recognition of the grantor's title.
It is insisted by the plaintiff in error that, even though the bond be construed as making time of the essence of the contract, the allegations of the petition allege a waiver of the conditions by the grantor, in that the petition alleges: "That during said time before his death, the said J. L. Smith paid an unknown amount of money upon said purchase price, but did not pay said purchase price in full; that the said J. R. Lipsey, grantor in said bond for title, agreed and allowed the said J. L. Smith to pay upon said purchase price as he was able, and thereby waived the payments according to the terms of said bond for title." These allegations do not show a waiver of the time element for payment. Construing them most strongly against the pleader — which must be done on general demurrer — they show no payment on either of the notes after the notes became due. The allegation that he made payments as he was able is not an allegation that the grantor accepted payments on any note after it was past due. As to waiver the facts in this case differ from those in Stewart v. Ellis, 130 Ga. 685 (3) ( 61 S.E. 597); King v. Lipsey, 142 Ga. 832 ( 83 S.E. 957); Eaton v. Harwood, 198 Ga. 240 ( 31 S.E.2d 473), and such like cases. Nor does the fact that, after the notes became past due, the grantee remained in possession of the premises for a considerable time and until his death, show any act on the part of the grantor which constituted a waiver. The notes became long past due. Had the maker of the notes after they were past due tendered payment in whole or in part, whether it would have been accepted, we of course do not know. But the maker's long failure to pay his obligation cannot now be used to his advantage by asserting that his failure to pay has amounted to a waiver by the grantor in the bond for title of an original condition of his contract. As was said in Hamilton v. England, 95 Ga. 693, 698 ( 22 S.E. 697): "It is a well-settled and universally recognized rule of law, that no man can profit by his own wrong; and that no man ought to be permitted to profit by a failure upon his own part to perform the obligations imposed upon him by the terms of an agreement to which he was himself a party, is a principle equally well founded both in law and morals."
Judgment affirmed. All the Justices concur.