Broadwell v. Kiker

Stephens, J. 1. Where, after the death of a testator and before the probate of the Will, and before the issuance of any letters testamentary to the executor named in the will, who is vested with power to sell certain real estate belonging to the estate of the testator, the executor enters into a contract of sale with a purchaser who has full knowledge of the above-recited facts, by which contract it is agreed that the executor is to sell and the purchaser is to buy such real estate, but where it is further agreed that the executor is not to execute and deliver a bond for title to the purchaser until a certain date in th'e future, which date is designated and agreed upon between the parties because it will occur after the executor shall have obtained letters testamentary, and where the purchaser goes into possession under such contract and immediately makes a payment on the purchase-price, and upon the arrival of the designated date upon which it has been agreed that the executor is to execute a bond for title to the purchaser, the executor has received Ms letters testamentary, and offers to perform his obligations under the contract and to execute to the purchaser a bond for title to the real estate, such offer by the executor to perform, even if the original agreement could be considered as void for lack of power in the executor at the time to execute it, in the absence of any offer to rescind by the purchaser, and especially in view of the purchaser’s remaining in possession, amounts to a ratification by the executor of the original agreement, or to an acceptance by the executor of an outstanding offer to purchase by the purchaser. The right of the executor to make a sale and to execute the necessary papers was confirmed by the retroactive effect of the letters testamentary. Northington v. Farmers Gin Co., 119 Ga. 851 (47 S. E. 200, 100 Am. St. Rep. 210); Hatch v. Proctor, 102 Mass. 351. 2. A description of the land contained in the contract is sufficiently definite where the land is described.as “all that tract or parcel of land lying and being in the City of Atlanta, Georgia, being house and lot known as No. 22 Alaska Ave., lot being 50 x 140 feet on the west side of Alaska Ave., located 250 feet north of Highland Ave.” Horine v. Hicks, 25 Ga. App. 802 (104 S. E. 922). 3. Where the executor offered to perform as above set out, a refusal by the [280] purchaser to comply with his obligations under the contract amounted to a breach. Decided March 4, 1922. Action on contract; from Fulton superior court — Judge George L. Bell. April 8, 1921. Etheredge, Sames & Etheredge, for plaintiff. E. F. Childress, J. Caleb Clarke, for defendant. 4. This being a suit by the executor against the purchaser, to recover damages for such an alleged breach of the contract, the plaintiff’s petition is good against the general and special demurrers'interposed, and the trial judge erred in dismissing the petition on demurrer. Judgment reversed. Jenkins, P. J., and Hill, J., concur.