Baker v. Corbin

Gilbert, J. The court did not err in refusing to enjoin th« suit in the city court. The suit sought to be enjoined ds a suit for damages based on an allegation of breach of contract only in so far as 'the vendor refused to surrender possession of the land to the vendee. To this suit the vendor, if the facts alleged by him are true, has a complete defense at law. The contract for the sale of the land by Baker to Corbin is by the tract or entire body, and therefore the deficiency, if any, can not be apportioned. Civil Code (1910), § 4122. The vendor is obliged to convey, and surrender possession of, only the land lying within the described metes [269] and bounds. Mr. Devlin, in his work on Eeal Estate (3d ed., vol. 2, § 1044), says: “Unless there is an express covenant that there is the quantity of land mentioned, the clause as to the quantity is considered simply as a part of the description.” This court has held:- “Where a tract of land is described in a deed by metes and bounds, and as containing so- many acres, more or less, the quantity must yield to the metes and bounds. If the measurements contain twenty acres, that number of acres is conveyed to the grantee, although the deed may describe the number of acres as ten, more or less.” Ray v. Pease, 95 Ga. 153, 170 (22 S. E. 190); Beall v. Berkhalter, 26 Ga. 564; Kendall v. Wells, 126 Ga. 343 (55 S. E. 41). The quantity of land is specified in the bond for title as “more or less.” This qualification will cover any deficiency not so gross as to justify suspicion of wilful deception or mistake amounting to fraud. Civil Code (1910), § 4122. In the absence of fraud the vendee is hound to accept, under the contract, the land contained within the described boundaries, and the vendor would have no need for a reformation. Obviously, if the vendor is guilty of'actual fraud he would not he entitled to a reformation of the contract. The same thing would be true in regard to the prayer for reformation. Compare Finney v. Morris, 116 Ga. 758 (42 S. E. 1020); Rosenthal v. Gordon, 142 Ga. 682 (83 S. E. 511). The allegations in the suit in the city court simply make a case where the vendor has refused possession under the contract, without more. It contains no hint that the plaintiff in that suit is unwilling to accept the land described by metes and bounds in the bond, regardless of the actual number of acres; and if that is true, the vendor is bound, under the contract, to surrender possession, in which event, if the vendee pays the balance of the purchase-price according to the contract, the vendor will be bound to make title to the land as described in the bond. If, as alleged in the petition for equitable relief, the vendee has notified the vendor that without the concession off approximately $2000 by the vendor on the purchase-money notes the vendee will refuse to make any further payments on said notes, this will amount to a renunciation of the contract by the vendee, which makes a complete defense on behalf of the vendor, and in this event the vendor is under no obligation to surrender possession. Civil Code, § 4302. “The majority of the courts have reached the conclusion that a renunciation which amounts to a refusal to perform the contract [270] at any time gives the adverse party an option to treat the contract as broken. Such an announcement by one of the parties to the contract amounts to a violation of the contract in omnibus, and the other party, if he so elects, may at once treat it as a breach of the entire contract.” 6 E. C. L. 1024-1025, § 385; Id. 1012, § 374. Under our code a rescission of the contract must go to the whole. There can be no rescission of the contract in part. Civil Code (1910), § 4305; see Langston v. Langston, 147 Ga. 318. (93 S. E. 892). Judgment affirmed. All the Justices concur.