1. "If, after notice that another has made a contract for the purchase of land, a third person cuts in, buys it, and takes a conveyance, such person stands in the place of his vendor, and a court of equity, if it would decree a specific performance of the contract against the latter, will render a like decree against the former." Bryant v. Booze, 55 Ga. 438.
2. Generally time is not of the essence of contracts for the sale of land; but it may be made such by express stipulation or reasonable construction. In the instant case, the allegations of the petition show that the plaintiff's right to demand specific performance of the contract relied upon was barred neither by an express limitation as to time for compliance, nor by laches.
3. Before equity will decree specific performance of a contract for the sale of land, there must be an unconditional tender of the agreed purchase-price; but tender before suit is waived, where the party entitled to payment by conduct or declaration proclaims that if tender of the amount due should be made acceptance would be refused. The allegations of the petition in this case show such a waiver.
Edgar Blalock filed against George Finney, in the Superior Court of Fulton County, on September 14, 1949, a petition which made these allegation: R. J. Gamble and his wife, Anna Dora Gamble, on September 20, 1945, agreed to sell the plaintiff certain real estate in Fulton County, Georgia, for a consideration of $8000. The plaintiff agreed to buy the same and paid the sellers $200 as a part of the purchase-price. The sales contract, which was signed by all of the parties and duly recorded on February 5, 1947, contained, among others, this recital: "Seller agrees to furnish good and marketable title to said property, and buyer shall have a reasonable time in which to examine the sane. If buyer finds any legal defects to title, seller shall be furnished with a written statement thereof and given a reasonable time in which to correct the same. It is agreed that such papers that may be legally necessary to carry out the terms of this contract shall be executed and delivered by the parties at interest as soon as the validity of the title to said property has been established." Under the head of "Special Stipulation," this additional statement was typed into the printed contract: "This contract is subject to the clearing of titles." It was further alleged that W. E. Gamble as administrator de bonis non of the estate of W. J. Gamble, deceased, had filed a suit in Fulton County on November 16, 1944, against R. J. Gamble and his wife, Anna Dora Gamble, to declare void and cancel the deed under which they claimed title for the property in controversy, and that this fact was, of course, well known to R. J. Gamble and his wife when they agreed to sell the property to the plaintiff in this suit. When this plaintiff, on October 9, 1945, first learned of the pending suit against R. J. Gamble and his wife, and that they could not for that reason pass title to him for the land embraced in the contract between them, the plaintiff personally notified R. J. Gamble--that it was his desire and intention to fully comply with the terms of their contract as soon as their title was legally established, and R. J. Gamble, at that time, assured him that he and his wife would consummate the sale, according to the terms of the contract, upon a favorable termination of the pending suit. It was further alleged that the plaintiff frequently between October 9, 1945, add June 21, 1948, personally, also by telephone conversations and by letters, notified R. J. Gamble and his wife, their sales agent, and their attorney that he was ready and anxious to comply with the terms and complete his part of the sales contract as soon as the litigation affecting their title terminated, and that he would expect them to do so. A Copy of each of the several letters so written was attached to and made a part of the petition. R. J. Gamble on or about November 10, 1947, in a long-distance telephone conversation with the plaintiff tendered a breach of the contract, and offered to return the $200 which the plaintiff had paid as a part of the purchase-money, but the plaintiff declined to accept the offer and advised R. J. Gamble that he would insist upon a performance of the contract as soon as he and his wife could comply with the conditions of the same. The litigation in Fulton County against R. J. Gamble and his wife terminated on July 27, 1945, and by the final decree entered in that proceeding their title to the property in question was fully established and settled. The plaintiff immediately thereafter and on several other occasions went to Hapeville, Georgia, where R. J. Gamble and his wife resided, for the purpose of tendering them the balance of the purchase-money which he was due for the land in question, but was unable to locate them. On September 9, 1949, the defendant Finney, who is the father of Mrs. Anna Dora Gamble, informed the plaintiff, that he had purchased the land in question from R. J. Gamble and his wife on October 24, 1947, and by deed which was recorded January 7, 1948. It is also alleged that the deed from Gamble and his wife to the defendant Finney was made without the plaintiff's knowledge and in fraud of his rights under the sales agreement of September 20, 1945, and that the defendant purchased the land in question from R. J. Gamble and his wife, and accepted a conveyance from them, with full notice and knowledge, both actual and constructive, of the plaintiff's right to purchase the premises in question under his contract upon the payment of the balance of the agreed purchase-price, which was an adequate consideration for the same. The plaintiff, immediately after learning that the defendant Finney had acquired title to the property in controversy from R. J. Gamble and his wife, notified Finney that he was ready, able, and willing to comply with the terms of the contract by paying hind the balance of the agreed purchase-price, but the defendant stated to him that, if a tender of the balance of the purchase-price was
made to him, he would refuse to accept it. It was also alleged that damages would be inadequate compensation for the nonperformance of the contract, and that the plaintiff was ready, able, and willing to pay the defendant the balance of $7500 due under his contract, or whatever amount the jury might find to be due. The prayers were for process, for specific performance upon payment of the balance of the purchase-money, and for general relief.
The defendant demurred generally upon the ground that the allegations of the petition were insufficient to set forth a cause of action, legal or equitable, against him; and on the further ground that the petition shows affirmatively that the plaintiff made no valid tender of the balance due under the contract relied upon, to any one who was required to perform the same, before instituting his action for specific performance. He also demurred specially on the grounds of nonjoinder, misjoinder of parties and causes of action; and to the allegations in paragraph 22 of the petition, that the deed from R. J. Gamble and his wife, Anna Dora Gamble, to the defendant was in fraud of the plaintiff's rights, under his sales agreement with them, because the same was too vague, indefinite, and uncertain to enable him to answer properly and make his defense. The court sustained the special demurrer to the allegation of fraud in paragraph 22, with leave to amend in fifteen days, and overruled all of the other grounds. The defendant excepted.
(After stating the foregoing facts.) 1. In Bryant v. Booze, 55 Ga. 438, this court said: "If, after notice that another has made a contract for the purchase of land, a third person cuts in, buys it, and takes a conveyance, such person stands in the place of his vendor, and a court of equity, if it would decree a specific performance of the contract against the latter, will render a like decree against the former." And the ruling made in that case was followed in Linder v. Whitehead, 116 Ga. 206 (42 S. E. 358), and Grooms v. Grooms, 141 Ga. 478 (81 S. E. 210). In the present case, it is alleged that the defend ant purchased the land in question from R. J. Gamble and his wife, Anna Dora Gamble, and accepted a conveyance from them, with full notice and knowledge, both actual and constructive, of the plaintiff's right to purchase the sane under the terms of his contract with them, upon payment of the balance of the purchase-money. In these circumstances, he would unquestionably occupy the place of his vendors, and would have to respond to a demand for specific performance of their contract, for them or with them. Fry on Specific Performance, 57, 58; 1 Story's Eq. 396; Collins v. Moore, 115 Ga. 327 (41 S. E. 609); Linder v. Whitehead, supra; Pearson v. Courson, 129 Ga. 656, 658 (59 S. E. 907); Collier v. Moore, 31 Ga. App. 227 (120 S. E. 441).
2. "Generally time is not of the essence of contracts for the sale of land; for such a construction would result in enforcing a penalty 'which equity abhors and the law does not favor;' and interest will generally be treated as full compensation for the delay." Ellis v. Bryant, 120 Ga. 890, 893 (48 S. E. 352). However, time may be made of the essence of such a contract by express stipulation or reasonable construction. Code, 20-704 (9). In the present case, it is freely conceded in the brief for the plaintiff in error that the contract now before us is not by its terms expressly limited as to time for compliance; and, under the pleaded facts, we do not agree with the contention made that the plaintiff's right to a specific performance of the contract is barred by laches. To do so, we would necessarily have to give it an unreasonable construction. "It is a well-settled and universally recognized rule of law, that no man can profit by his own wrong; and that no man ought to be permitted to profit by a failure upon his own part to perform the obligations imposed upon him by the terms of an agreement to which he was himself a party, is a principle equally well founded both in lab and morals." Hamilton v. England, 95 Ga. 693 (22 S. E. 697). This, as the record shows, is an ordinary contract for the sale of land, with part payment of the purchase-money. It contains the usual mutual agreements to buy and sell, a complete description of the property, and expressly stipulates that the sale is to be consummated by the parties when the sellars' title is clear ed of defects; and concerning title defects, the petition alleges that litigation affecting the sellers' title, of which they (the sellers) had notice at the time of executing the contract, was not finally concluded until July 27, 1948. In the meantime, the sellers, as shown by our statement of the facts, had, in violation of their contract, conveyed the premises in question to the defendant, who is the father of Mrs. Anna Dora Gamble; and the plaintiff, by diligent effort, was unable to locate them after the sufficiency of their title was judicially determined. These facts as thus alleged fully convince us that a ruling different from the one just made would do violence to obvious rules of law and the plainest principles of justice.
3. There is no merit in the contention of the plaintiff in error that the allegations of the petition with reference to tender were insufficient to withstand the attack made upon it by his demurrer. Standing in the place of his grantors, the defendant was, of course, entitled to the balance of the purchase-money, which the plaintiff agreed to pay them for the land in question, before being required to specifically perform their contract of sale. Groom v. Grooms, supra. But it is a well-established rule that tender before suit is filed may be and is waived where the party entitled to payment, by conduct or declaration, proclaims that, if a tender should be made, acceptance would be refused. Miller v. Watson, 139 Ga. 29 (76 S. E. 585); Burkhalter v. Roach, 142 Ga. 344 (82 S. E. 1059); Fraser v. Jarrett, 153 Ga. 441 (112 S. E. 487). The facts alleged in the petition were sufficient to show that the defendant by declaration waived tender of the balance which he was entitled to under the terms of the contract; and equity never requires a party to do a vain and useless thing before undertaking to assert his rights.
4. Headnote 4 does not require elaboration.
It follows from what has been said above that the judgment complained of is not erroneous for any reason assigned.
Judgment affirmed. All the Justices concur.