
    17793.
    Stanaland et al. v. Chastain.
    Decided March 8, 1927.
    Vendor and Purchaser, 39 Cyc. p. 1907, n. 70; p. 1908, n. 77; p. 1909, n. 78, 79.
   Broyles, C. J.

1. Where two persons agree, one to sell and the other to buy a certain piece of land at a fixed price, and the buyer pays part of the purchase-price and takes and retains possession of the land, but fails to pay the balance of the purchase-price when due under the agreement, and the vendor thereafter elects not to rescind the contract of sale, but to bring an action against the vendee for the balance of the purchase-price, but where his petition fails to allege that he has tendered the defendant a deed to the property, or that he is able and willing to make title on recovery of judgment and the satisfaction of the same by the defendant, his petition is subject to general demurrer, the defendant being entitled either to have the contract of sale rescinded or to have a deed to the property upon the payment of the full purchase-price. Taylor v. Fowler, 155 Ga. 659 (118 S. E. 212); Morris v. McKee, 96 Ga. 611 (2), 613, 614 (24 S. E. 142). See also Smith v. Tatum, 140 Ga. 719 (2) (79 S. E. 775). The case of Knowles v. Elyton Land Co., 88 Ga. 642 (15 S. E. 675), cited by the defendant in error, is distinguished by its particular facts from the instant case and the above-stated cases cited in support of the present ruling, and the rulings made in the Knowles case (some ,of which were obiter) are not in conflict with the present holding.

2. Under the above-stated ruling the court erred in overruling the general demurrer to the petition; and that error rendered the further proceedings in the ease nugatory.

Judgment reversed.

Luke and Bloodworth, JJ., concur.

Complaint; from city court of Thomasville — Judge MacIntyre. October 30, 1926.

Application for certiorari was made to the Supreme Court.

Clifford E. Hay, for plaintiffs in error.

J. E. Craigmiles, W. D. MacIntyre, contra.  