
    Kerr v. Hammond.
    1. Where one entitled to a conveyance from another of realty, or an interest therein, upon- the payment of a given sum, tendered at the proper time that sum to the latter, which he then refused to accept and subsequently denied the existence of any contract binding him to convey at ail to the person making the tender, such person could maintain his equitable petition for specific performance; and if the petition contained an offer to pay the amount which the plaintiff was due to the defendant or for which he should be held liable when the amount so due was fixed and ascertained by the decree to be rendered, this was sufficient without actually producing the money and paying it into court.
    2. In the present ease it was error to grant a nonsuit.
    December 2, 1895.
    Petition for specific performance. Before Judge Lump-kin. Pulton superior court. September term, 1894.
    
      A. H. Davis and Dorsey, Brewster & Hoioell, for plaintiff. Marshall J. Clarice, for defendant.
   Simmons, Chief Justice.

The plaintiff’s evidence makes substantially this case: He had arranged on May 17, 1890, to buy of one Weaver the land described in the pleadings, consisting of two hundred and fifty acres, for the sum of $6,250, of which $2,000 was to be paid in cash, and one half the remainder in one year and the other half in two year’s, the deferred payments to bear interest at eight per cent, per annum. Shortly afterwards he made a parol agreement with the defendant by which they were to become interested together in the-proposed purchase on this basis: the defendant to make the-cash payment, and if the land was sold at a profit in thirty days, snch profit to be divided between the parties, and if it was not thus sold within this time, plaintiff to pay defendant one thousand dollars and have a half-interest. There were no writings between the parties, and no agreement as-to the form which the transaction should assume in written instruments. Defendant made the cash payment, gave his-individual notes for the other payments, and took a bond for titles to himself. The land was not sold within thirty days. The plaintiff tendered the $1,000 within the time required by the contract. The tender was not accepted by the defendant, and he subsequently denied the existence of any contract binding him to convey at all. No further actual tender was ever made, .nor was the money held by the plaintiff for the defendant’s use. The defendant on May 6, 1891, sold 100 acres of the land for $4,500 and received the money. The defendant rented the land for two-years at $75 per year. He had cut on the land about 450 cords of wood worth $1 per cord, and about 50 cords worth $1.50 per cord. The cutting of the wood injured the land $25 per acre.

The petition prayed that the defendant be required to-specifically perform the contract between him and the plaintiff, and be required to execute to the plaintiff proper-papers conveying to the plaintiff a one half undivided, interest in the bond for titles held by the defendant, upon the plaintiff paying to him the $1,000, “which sum your petitioner now tenders to the said [defendant] and offers to pay the same into court subject to the order of said [defendant].” By amendment the plaintiff prayed, that the defendant be required to execute to him such conveyance as would protect his interest in the premises; that the-defendant should account to him for all the timber the defendant had cnt off the land and for whatever damage he may have done the land by the cutting of the timber, and for rents and profits of the land, and that the defendant be required to acount for the money which he received from the sale of 100 acres of the land on May 6, 1891. At the conclusion of the plaintiff’s evidence, the trial judge, on motion of the defendant, granted a nonsuit, on the ground that there was no continuing tender and no payment into court of the plaintiff’s part of the purchase money; and to this judgment the plaintiff excepted.

"We think the court erred in holding that such a tender was necessary. The decisions cited by the learned counsel for the defendant do not deal with a case of this kind. The case is different from that of a defendant pleading tender to escape the payment of interest and costs. The rule applicable here is well stated in Waterman on Specific Performance, §446, as follows: “Where a vendor places himself in such a position as to make it appear that if a tender of the purchase price were made its acceptance would be refused, the purchaser need not make a tender in order to maintain his bill. In such case, an offer to bring the money into court when the amount is liquidated and his decree granted, is sufficient. If the vendor refuses to receive the purchase money when tendered, or prevents the vendee from performing his part of the agreement, thus in effect making a demand nugatory, neither law nor equity requires it of the vendee. Under such circumstances, specific performance will be decreed within a certain time, provided the vendee, before that time, shall have performed on his part.” In the case of Irwin v. Askew, 74 Ga. 581, this court held that where a contract for the sale of land and putting the purchaser in possession was broken by the vendor saying to the purchaser that he could not comply with its terms, tender of the purchase money was unnecessary. In the present case it appeared that the plaintiff tendered in due time the full amount required of him by the contract, but the defendant refused to accept it, and denied that there was any contract at all which bound him to convey to the plaintiff. Moreover, in view of the sale of a part of the land by the defendant, and of the sums realized by him from the rent of the land, the cutting of wood therefrom, etc., an accounting was necessary in order to ascertain how much was due by the plaintiff. A tender of the money into court was rendered unnecessary, therefore, not only by the defendant’s repudiation of the contract, but by the uncertainty as to the amount actually due. (See Deichmann v. Deichmann, 49 Mo. 107, 110; Irvin v. Gregory, 13 Gray (Mass.), 215. In the case last cited it was said by Shaw, C. J.: “When money is brought into court with a plea of tender, it is an admission of the party bringing it that the adverse party is entitled to it, and may take it out when he pleases. But in a suit for specific performance, it is sufficient for the plaintiff to offer by his bill to bring in his money whenever the sum is liquidated, and he has a decree for performance.” The plaintiff, as we have seen, did this in the present case. In addition to the authorities above cited, see 3 Pom. Eq. Jur. (2d ed.), note to section 1407, and cases cited; 22 Am. & Eng. Enc. of Law, Art. Specific Performance, pp. 1040, 1041, and cases cited. Judgment reversed.  