The petition of the plaintiff vendee stated a cause of action for money had and received to recover the amount paid under an executory contract of purchase and sale of certain described real property, the terms of which the defendant vendor had allegedly breached by granting an easement in the subject property to a third party; and the verdict for the plaintiff was authorized by the evidence.
This was a suit for money had and received brought by Arthur M. Council against Walter T. Tally, Inc., to recover a sum of money which the plaintiff alleged he had paid the defendant under an executory contract, dated August 1, 1960, for the purchase and sale of certain described real property in DeKalb County, Georgia. The purchase price under said contract, a copy of which was attached to the petition as Exhibit A, was $2,500, including a cash payment of $200, and monthly installments in stated amounts. The petition alleged that the defendant had breached this contract by conveying, on July 17, 1961, a portion of the described property to DeKalb County to be used for installing a sewer trunk line through said property.
The defendant in its answer admitted the execution of the contract and the payment of $980 by the plaintiff under the terms of the same. The defendant also admitted that it had granted an easement to DeKalb County to erect and maintain a sanitary sewer through said property and that said sewer had been built by the county. The defendant alleged that the installation of the sewer increased the value of the property and denied that the granting of the easement constituted a breach of contract. The defendant also filed a cross action in which it sought a judgment for the unpaid balance of the purchase price, it being alleged that the plaintiff had made no payments after July, 1961.
The case proceeded to trial before the court without the intervention of a jury, and a judgment was entered for the plaintiff in the sum of $980. The defendant's motion for new trial which contained the general grounds only was denied, and the exception is to that judgment.
" 'Where the vendor breaches an executory contract for the sale of land, the vendee, if not himself in default, may elect to rescind the contract and recover the amount he has paid on the purchase price.' Anno. 59 A.L.R. 189, 223, citing many authorities, including: McDaniel v. Gray & Co., 69 Ga. 433
; Lightfoot v. Brower, 133 Ga. 766 (66 SE 1094)
; Higgins v. Kenney, 159 Ga. 736
, 747 (126 SE 837
, 40 A.L.R. 685); Mehrtens v. Knight, 29 Ga. App. 390 (115 SE 506)
; Clark v. Powell, 30 Ga. App. 198 (117 SE 250)
; Jones v. Clemons, 35 Ga. App. 552 (2) (133 SE 744)
. These cases sustain the proposition thus stated." Woodruff v. Camp, 101 Ga. App. 124 (112 SE2d 831)
The defendant vendor under the terms of the contract of sale was obligated to convey said property by warranty deed to the purchaser at the time the sale was consummated, subject to any incumbrances as specified in the contract. Since there were no incumbrances specified in the contract of sale, it was the vendor's duty under said contract to convey the subject property to the defendant vendee free and clear of any incumbrances. This is true for the reason that a general warranty in a warranty deed includes the covenant that the land being conveyed is free from incumbrances. Code 29-303; Sawyer Coal &c. Co. v. Kinnett-Odom Co., 192 Ga. 166 (4) (14 SE2d 879); Robertson v. Webster, 79 Ga. App. 30 (52 SE2d 511). An incumbrance has been defined as "Any right to, or interest in, land which may subsist in another to the diminution of its value, but consistent with the passing of the fee," Black's Law Dictionary, 4th Ed., p. 908; and this definition which we deem applicable here encompasses an easement or right of way. See Krotzer v. Clark, 178 Cal. 736 (174 P 657); Thackeray v. Knight, 57 Utah 21 (192 P 263); Tandy v. Waesch, 154 Cal. 108 (97 P 69); Switzler v. Robert A. Klein & Co., 94 Cal. App. 410 (271 P 367).
Accordingly, where, as here, the evidence authorized the finding that the defendant vendor had placed an incumbrance upon the subject property by conveying an easement in it to DeKalb County for the purpose of installing and maintaining a sewer line through that property (which according to the testimony of the plaintiff rendered the property less valuable for the use intended) and had thus rendered the performance of its contract impossible, the plaintiff vendee who was not himself in default was entitled to rescind the contract and recover the amount he had paid on the purchase price. Woodruff v. Camp, 101 Ga. App. 124
The trial court did not err therefore in denying the motion for new trial.
Judgment affirmed. Bell, P. J., and Eberhardt, J., concur.