Keith v. McCollum

Per Curiam. The counter-affidavit of the defendant set up more than one defense to eviction, as provided in the Code, § 61-303, but on the trial of the ease the defense was that Mrs. Keith was not a tenant of Mrs. McCollum, but occupied the status of a purchaser of the premises in dispute. Properly construed, the contract between the parties provided for a sale of the land to Mrs. Keith in two events: (1) that the proposed release could be obtained from the Federal Land Bank; (2) that no release could be obtained, and Mrs. Keith elected to buy the land with the in-, cumbrance placed on it by Mrs. McCollum, and to take her chances that Mrs. McCollum would pay off the incumbrance on the land contracted for, which was in excess of $1800, the amount assumed by Mrs. Keith as part of the purchase-price. The judge construed *710 the contract as meaning that a sale was intended only if a release could be obtained. In this we think he was in error; and this error was responsible for the charges to the jury which are complained of, and for the judgment overruling the motion for new trial. The crop was not planted, cultivated, and harvested according to the terms of the contract, because Mrs. McCollum did not furnish the seed, and it was not contemplated when the crop was planted that it was planted on the basis of a rental agreement. In such an event the contract provided that Mrs. Keith was presumed to have elected to buy the land and not hold it as tenant, even though no release by the bank was made. Hence all right, title, and interest Mrs. McCollum owned passed to Mrs. Keith, except that involved in the security deed held by the Federal Land Bank. Other evidence in the case also demands the conclusion that the purchase of the land by Mrs. Keith was consummated. She refused to pay rent; she insisted that she wanted to complete the purchase, but was met by a demand for possession of the land. Mrs. McCollum did not tender the $400. Mrs. Keith did not demand it, or offer to execute a deed to the land. The fact that the deed was delivered to Mrs. McCollum by the escrow agent would not be material. Mrs. Keith was entitled to its possession, and the law will regard the deed as having been delivered to her. The delivery of the deed to the proper party was to be made when the transaction was closed. Under the agreement it was closed when Mrs. Keith operated the farm as her own and not under the agreement as tenant. It necessarily follows that Mrs. Keith was the owner of the land subject to the Federal Land Bank’s deed to secure debt, and that there was no relationship of landlord and tenant between the parties. This ruling covers the exceptions to the charge of the court and the overruling of the motion for new trial. The court erred in overruling the motion for new trial. Judgment reversed. Stephens, P. J., and Felton, J., concur.