Holliday v. Ashford

(After stating the foregoing facts.) The Civil Code (1910), § 4122, provides: “In a sale of lands, if the purchase is per acre, a deficiency in the number of acres may be apportioned in the price. If the sale is by the tract or entire body, a deficiency in the quantity sold can not be apportioned. If the quantity is specified as ‘more or less/ this qualification will cover any deficiency not so gross as to justify the suspicion of willful deception, or mistake amounting to fraud; in this event the deficiency is apportionable; the purchaser may demand a rescission of the sale or an apportionment of the price according to relative value.” It will be seen that this section of the code provides that “if the sale is by the tract or entire body, a deficiency in the quantity sold can not be apportioned.” In the present case the description of the land is by metes and bounds, as follows: “Beginning at a point on the south side of Merritts Avenue, one hun*509dred sixty (160) feet west from the southwest corner of Merritts Avenue and Fort Street (now called Bedford Place), running thence west on the south side of Merritts Avenue one hundred fourteen and ten twelfths (114-10/12) feet to line of property sold by Ashford to W. B. Disbro; thence south one hundred ninety-six and one tenth (196.1) feet to a twenty (20)-foot alley; thence east along the north side of said alley sixteen and ten twelfths (16-10/12) feet; thence in a northerly direction thirty-five and six tenths (35.6) feet to the northwest corner of twenty (20)-foot and a sixteen (16)-foot alley; thence east along the north side of said sixteen (16)-foot alley ninety-eight (98) feet; thence north to south side of said Merritts Avenue to point of beginning, one hundred sixty and one half (160-%) feet; being part of the property deeded to W. T. Ashford March 24, 1908, by Hugh T. Inman, recorded March 27, 1908, in Booh 237, page 443, Fulton County records.” From the above description of the land it will be seen that the conveyance of the land was by the tract. Longino v. Latham, 93 Ga. 274 (20 S. E. 308); Kendall v. Wells, 126 Ga. 343 (55 S. E. 41); Land Trust Co. v. Morgan, 22 Ga. App. 388 (95 S. E. 1006). The Civil Code (1910), § 4124, provides: “If the purchaser loses part of the land from defect of title, he may claim either a rescission of the entire contract, or a reduction of the price according to the relative value of the land.” Construing these two sections of the code together, it would seem that where the purchaser loses part of the land from a defect in the title, or where there is a deficiency in land sold by the tract, he may sue for a rescission of the contract of sale in a proper ease. Civil Code (1910), § 4124; Riehle v. Bank of Bullochville, 158 Ga. 171 (123 S. E. 124); Roberts v. Wilson, 153 Ga. 538 (112 S. E. 451). From the foregoing we are of the opinion that the petition set out a cause of action, and that the judge erred in sustaining the demurrer.

Judgment reversed.