Campbell v. Empire Land Co.

Russell, C. J. As appears from the foregoing statement of facts, the contract between Mrs. Campbell and the Empire Land Company was executory in its nature. The obligation of the land company to make title to Mrs. Campbell, as evidenced by its bond for title, depended upon the payment by her of the purchase-price of the land, as evidenced by the promissory notes upon which the suit was based. The contract must necessarily remain executory until it becomes executed by the -payment of the notes. An executory contract, unlike an executed contract, is subject to be breached. There was evidence in this case that tended to show that the executory contract with Mrs. Campbell was breached by the Empire Land Company, who sold to Mrs. Turner, without restrictions and for the purpose of a dairy, property adjoining that which Mrs. Campbell had been induced to buy upon the distinct representation that the entire subdivision or tract of land was strictly reserved for residential purposes only. The provision with reference to the reservation of the property for residential purposes only is very material and essential; and should a jury find, as they would be authorized by the evidence to find, that the restriction to residential purposes was absolutely disregarded by the land company after Mrs. Campbell had been induced to enter the contract evidenced by her bond for title, she would be entitled to a rescission of the contract and the return of the money paid by her on the purchase-price. Were the rule otherwise, the owner of a tract of land could subdivide it into 'lots under a plan and pledge very favorable to its development in a particular line, and under these representations induce buyers to purchase a number of lots, and thereafter, by violating the conditions as held forth to these purchasers, and apparently selling other adjacent portions of the property for purposes which would depreciate the value of the section, be enabled to repurchase his property sold at high prices at a mere nominal [821] figure, and wind up by having pocketed the money of the purchasers without having really parted with any of his land. As will be noted from the statement of facts, the time for the consummation of Mrs. Campbell’s purchase by the delivery of a deed had not arrived when the breach of the provision with reference to the restriction of the tract of land to purely residential purposes took place. The case is not one of a mere breach of a bond for title, in the sense that the contract to convey title had been violated; for the bond for title was not the whole contract between the parties. The defendant’s contention was that by her contract with the plaintiff she acquired the right to have all of the lots in the subdivision devoted to use for residential purposes. But the defendant also pleaded, if for any reason she was not entitled to damages, that the contract be rescinded and that she recover the amount she had paid on the purchase-price and for improvements placed upon the land, because of the fraud practiced by the plaintiff. See Epps v. Waring, 93 Ga. 765 (20 S. E. 645); Leyden v. Hickman, 75 Ga. 684. It is no answer to the defendant’s cross-action in the present case to say that she seeks^ the application of contradictory remedies. In our opinion the decision in Printup v. Rome Land Co., 90 Ga. 180 (15 S. E. 764), controls our ruling in this case. And while in our opinion the defendant can not recover damages for the breach of the contract by way of set-off (because she can not at the same time stand upon the contract and yet repudiate it), we hold that the defendant had a right to rescind the contract and ask that she recover the money paid by her and whatever was expended for improvements by reason of the plaintiff’s fraud in inducing her to enter the contract and thereby subjecting her to these useless expenditures. So we are of the opinion that the court erred in directing a verdict, and therefore erred in overruling the motion for a new trial based upon that groimd. There are other assignments of error in the motion for a new trial as amended, but these need not be considered. One of them is expressly abandoned by the plaintiff in error, and the remainder may be treated as abandoned because they are not referred to in the brief. Judgment reversed. All the Justices concur, except Beck, P. J., and Hines, J., dissenting.