Turner v. Chambers , 160 Ga. 93 ( 1925 )

Hill, J.

(After stating the foregoing facts.)

A correct decision of the case turns upon the proper construction of the contract entered into between the parties in this case. Reaching a correct conclusion as to the meaning of the contract within the contemplation of the parties thereto is not without difficulty. The question presented for decision is, were the deeds executed to Mr. Candler to the land in controversy though absolute upon their face, a mere security for a loan ? Under the facts of this case wo are of the opinion that the court below properly held, in effect, that the transaction involved between the parties was a loan, and that the plaintiff, Candler, held legal title to the land as security for the money paid by him for the purchase of the land, to wit, the sum of $33,000, together with $11,927.33 interest, declaring a special lien on the land, and that upon the payment of the same-to the plaintiffs, Messrs. Candler and Turner, they should have no further interest or title therein. The deeds held by Mr. Candler, under all the facts of the ease, had the effect of being security deeds against the land in controversy. It will be observed that the contract, which was executed the day after the last deed, declares that “whereas the said several sums above set out were paid out by said first party [Candler] at the request and for the benefit of said second parties [Chambers and Wilcox], . . and they desire to repay him said money.” The contract also provides for the operation of a sawmill by Chambers and Wilcox) and the payment of any net profits derived therefrom to Mr. Candler, “which said amounts shall be allowed as credits on said indebtedness above set out.” The contract also provides, “in the event settlement is made of these matters according to this agreement by said date, that he [Candler]' will make deeds to said second parties or their assigns, and give due credit for the sums of money so paid him from time to time.” The language quoted strongly tends to show that the parties to the contract at the time of its execution contemplated the relation of debtor and créditor. In construing a contract one of the rules of construction is that where its meaning is ambiguous or doubtful, that construction is to be put upon it that is given by the parties themselves at the time of its execution. See Armistead v. McGuire, 46 Ga. 232; Ga. R. Co. v. Smith, 83 Ga. 627 (3) (10 S. E. 235); Bloom v. Americus Grocery Co., 116 Ga. 786 (43 S. E. 54). What, therefore, was the construction that the parties themselves placed upon this contract ? On December 26, 1919, Mr. Candler, writing to Mr. Chambers, one of the defendants, stated, among other things, “I wish that you could get from the same source that you are obtaining the money with which to acquire this additional acreage, also enough that the same party may .take up the loans that I have made you.” And on April 14, 1920, Mr. Candler, writing to Mr. Chambers, inquired, “How about payments that are due on your indebtedness?” It seems, therefore, that Mr. Candler considered at that time the relation existing between him and Chambers and Wilcox as that of debtor and creditor.

But it is insisted that the language of the contract prescribing a time limit within which defendants could pay the debt and redeem the property, even if the deeds were to be construed as security deeds, operated as a forfeiture of defendants’ rights after the expiration of the time limit, to wit, January 1, 1921. Eorfeitures are not favored by our law. Glover v. Central Investment Co., 133 Ga. 65 (65 S. E. 147). Besides, we are of the opinion that Mr. Candler waived his right to insist upon the time limit named in the contract, by reason of his failure to insist upon it at the time, and because of his conduct subsequently thereto. It is well settled in this State that notwithstanding time is of the essence of a contract, it may be waived, and a subsequent offer to fulfill the contract and urging a compliance with the contract by the party of the other part, instead of treating the contract as at an end, amounts to a waiver. Jordan v. Rhodes, 24 Ga. 478. See also Moody v. Griffin, 60 Ga. 460; Chapman v. Ayer, 95 Ga. 581 (23 S. E. 131). Mr. Candler, having failed to insist upon a forfeiture at the time specified in the contract, and having orally agreed that the defendants might have further time within which the loan could be paid, waived his right to insist later upon the forfeiture. See King v. Lipsey, 142 Ga. 832 (83 S. E. 957). The defendants have offered to pay the amounts claimed to be due under the contract. Undoubtedly they are indebted to Mr. Candler, or to his assignee, Mr. Turner, in the full amount of principal which the former has advanced “for their benefit,” with interest. From the record it appears that the defendants have tendered and continue to tender the full amount due to the plaintiffs. We are of the opinion that the learned trial judge has correctly applied equitable principles to the facts of the case, and that there was no error in overruling the demurrers, or in entering the decree which he made, or in overruling the motion for a new trial. See Doris v. Story, 122 Ga. 611 (50 S. E. 348), where this court held: “Where A contracted with B for the purchase of a lot of land and paid the first installment, and C, at A’s request, paid the balance of the purchase-money, and B, by A’s direction, made C an absolute fee-simple deed to the land, it being agreed between C and A that C should hold the title as security for the payment by A to C of the sum paid by C, C got a good title subject to be divested only by the payment of the debt thus secured.”

Judgment affirmed.

All the Justices concur.