Burwell v. Hill

Beck, P. J.

(After stating the foregoing facts.)

1. We are of the opinion that the court properly overruled the general demurrer to the petition. If, as alleged in this petition, the plaintiff had an option on the place to purchase at a given price, the agreement with Burwell whereby they should purchase the same and become joint, tenants was not inconsistent with any duty that they owed to the owner of the place. And if the defendant agreed to borrow money and paid the purchase-price, giving a mortgage to secure the money borrowed, and agreed also that the plaintiff should have a half interest in the place, and the plaintiff remained upon the place, managing and improving the same by himself and by tenants, and turned over the annual proceeds to the defendant, as is alleged, then when the sum of the proceeds thus turned over to Burwell equaled the amount of the purchase-money *366 and interest, the plaintiff was entitled to specific performance, and to have a conveyance of a half interest in the land, or to have a court decree the same in him. This ease differs on its facts from the case of Hall v. Edwards, 140 Ga. 765 ( 79 S. E. 852 ). In that case it was held: “An oral agreement between A and B to purchase a tract of land, whereby A is to pay for the land from the proceeds of a loan to be secured by him upon the joint security of a tract of land owned by him and the purchased tract,, and take title to the purchased tract in his own name, and convey to B a half interest when ho is reimbursed for the purchase-money from the rents, issues, and profits of the purchased tract, is deficient in mutuality and a nude pact.” The defendant relies upon tire case just cited, and cases substantially like it in principle, to support his contention that the contract stated was a nudum pactum and lacking in mutuality. The distinction between the two cases will be seen at a glance, upon comparing the facts. In the case cited the party borrowing the money and paying for the tract of land was to take title to the tract thus purchased in his own name, and convey to the other party a half interest when he should be reimbursed for the purchase-money from the rents, issues, and profits of the purchased tract. The plaintiff in the instant case, .under the allegations of the petition, took charge of, rented, managed, and improved the place. He collected the rents and turned them over to the party who furnished the purchase-money. He had no other compensation for the services which he rendered than the interest which he had in the place; and while Burwell borrowed the money, it was “distinctly agreed that the loan should be repaid by them jointly.” The stipulation in the agreement that there should be a joint liability for the loan furnished the element of mutuality; for if Burwell effected the loan of the money for which the purchase-price was paid under this kind of an agreement with the complainant, and had been forced, out ofhia own funds, to pay the obligation incurred by borrowing the money, he would have had his remedy against the complainant to compel him to repay his proportion of the sum borrowed.

2. The first six paragraphs of the petition relate to a transaction which had been completed, and which was entirely separate and distinct from that out of which the alleged rights of the plaintiff set up in the present suit arose; and the history of that former transac *367 tion is not essential to the petition in the present case as matter of inducement. The demurrer, therefore, to these six paragraphs should have been sustained and those paragraphs eliminated; and the court erred in overruling the demurrer to that part of the petition. If by elimination of these six paragraphs certain references ' to them in other parts of the petition should be rendered obscure, the obscurity thus produced may be cured by proper amendments.

3. The other special demurrers, in so far as they were meritorious, were sufficiently met by amendment.

In the brief of counsel for the plaintiff in error it is pointed out that the petitioner, in‘order to evade the effect of a certain rent note which he gave for the rent of the land after it was purchased by the defendant, alleges that the note was given by him for more rent than the land-was actually worth, and that .this was done for the purpose of falsely inflating its value to enable the defendant to borrow the purchase-money with which to pay for the same; and plaintiff in error contends that the plaintiff in the court below "could not take advantage of his own‘fraud, that the rent note speaks for itself, and is an estoppel of the plaintiff to set up that it was given in fraud for the purpose of inflating the value of the land.” There was no special demurrer to the paragraph of the petition just referred to, upon the ground taken in the brief; and the court below was not called upon to decide, and did not decide, Avhether it should be stricken from the petition or not upon that ground.

While we have upheld the overruling of the general demurrer, the judgment is reversed because of the failure of the court to sustain the demurrer to the first six paragraphs of the petition, upon the grounds pointed out in the second division of this opinion.

Judgment reversed.

All the Justices concur.