James E. Jordan, plaintiff in error, vs. Benjamin F. Rhodes and Azariah Doss, defendants in error

Supreme Court of Georgia1858-01

24 Ga. 478

Summary · law.co

Holding. The court reversed the trial court's order dissolving the injunction and held that the injunction should have been retained. Upon payment of the purchase money into court, Jordan is entitled to receive a conveyance from either Rhodes or Doss directly, with the deed from Doss to Rhodes to be cancelled.

In February 1852, Doss sold Jordan a parcel of land for $350 with deferred payment terms. When Jordan failed to pay by the agreed deadlines, Doss and Jordan renewed the contract in 1853 with a new note for $423.25. Years later, despite Jordan's continued non-payment, Doss tendered a deed to Jordan and urged payment. When Jordan still did not pay, Doss sold the same property to Rhodes for $500, with Rhodes having knowledge of Jordan's prior claim—Rhodes had seen Jordan's note and been told of the earlier transaction. Rhodes then initiated ejectment proceedings against Jordan to recover possession, while Doss separately sued on Jordan's note. Jordan sought an injunction to stop these proceedings and offered to pay the full purchase price in exchange for a valid deed.

The trial court initially granted the injunction but later dissolved it. On appeal, the court examined Doss's conduct and found that by tendering a deed and demanding payment rather than rescinding the contract or treating it as terminated, Doss had affirmed the sale. The court concluded that Jordan retained the right to stop any legal action by paying the outstanding purchase money.

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Key issues

Whether a seller who tenders title and demands payment after non-performance affirms or resccinds a land sale contract
Rights of a subsequent purchaser with notice of a prior uncompleted land sale
Equity's power to enjoin ejectment and enforce specific performance of a land contract upon payment

Procedural posture

Jordan filed a bill in equity seeking an injunction against ejectment and note-collection proceedings and seeking a decree for conveyance of the land upon payment of the purchase price; the trial court granted then dissolved the injunction, and Jordan appealed by writ of error.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Lumpkin J.,

By the Court delivering the opinion.

In February, 1852, Doss sold Jordan, lot of land No. 256, in the 6th district of Randolph county, for $350; §175 of which was to be paid the next Christmas ; and the other half the Christmas thereafter the whole to bear interest from date, if not punctually paid. In February, 1853, the purchase money being unpaid, the contract was renewed. Doss took Jordan’s note for §423 25, payable the 25th of December next, afterwards, and gave him a new bond for titles, upon condition, that the pripe was paid punctually,, without trouble or expense to the vendor. J ordan remained in possession of the land under this purchase, having originally been found upon it as a squatter, when the trade was made.

This last contract was not fulfiled. But notwithstanding the failure on the part of Jordan, Doss some years thereafter,, prepared a deed and tendered it to Jordan; and urged him to pay the purchase money. Failing to do so still, Doss sold the lot of land to Rhodes for §500 ; $300 of which has been paid, and the balance of $200, is still owing. The inference is from the proof, that Doss at the timo he sold to Rhodes, not only made him a warranty deed to the land, but also turned over to Rhodes, Jordan’s note.

To the April Term, 1855, of the Superior Court .of Randolph county, Rhodes brought his action of ejectment against Jordan, to get possession of the land; and at the ensuing October Term, a suit was brought in the name of Doss against Jordan, upon Jordan’s note. It is not pretended that it was the intention of either Doss or Rhodes to recover the land, and likewise Jordan’s note. But the idea was, that if the ejectment failed, payment of the note should be enforced.

Jordan now files his bill to enjoin these proceedings, and offers to pay for the land, provided he can got titles, which he prays to have made under a decree of the Court. The injunction was granted by the -Court, but upon the filing of the answer, the Court upon motion, dissolved the injunction, and it is to reverse this interlocutory order, that this writ of error is prosecuted.

We had best in the first place, disentangle this case of the complicity growing out of the re-sale of the land by Dess to Rhodes. Rhodes bought with full knowledge of the previous sale to Jordan. Jordan was not only in possession of the land, which should of itself have put Rhodes upon enquiry as to the nature of his tenure ; but Rhodes admits, that he saw the note given by Jordan to Doss, which note states upon its face, that the consideration of the note was the price of this lot of land : and, that is not all, Rhodes says that Doss told him of the previous sale.

The question then is narrowed down to this; conceding that time, is of the essence of this contract, and more is not asked; what are the relative rights of Doss and Jordan ; for we drop Rhodes altogether, and treat the transaction as though Doss and Jordan were alone the parties to it. In law, it is the same thing.

Doss then, some twelve months after Jordan’s last note fell due, tendered Jordan a title, and insisted on the payment of his note. So far from demanding a rescisión of the trade or treating it as at an end, by reason of the failure of Jordan 4o comply punctually with his agreement, he not only tenders a title, and urges the payment of the purchase money, but he subsequently turns over Jordan’s note to Rhodes, and upon which an action has been instituted.

The remedy of Boss was three-fold. To sue in ejectment, and thus force Jordan to pay the purchase money, or be evicted from the premises ; go into equity and obtain a decree for the rescisión of the contract by being put into possession and delivering up the bond for titles, and the note of Jordan to be cancelled ; or sue and obtain a judgment upon íhe note and have the land sold under the statute, to pay the debt. • In the prosecution of either of these remedies, Jordan would have had the right to have arrested the proceeding by paying up the purchase money; and this he offers now to do.

We hold then, that the injunction should have been retained ; and that upon the payment of the purchase money into Court, Jordan will be entitled to have a conveyance executed, either from Rhodes or directly from Doss; and the deed from Doss to Rhodes cancelled.

Judgment reversed.