No application to purchaser's attorney.

- Statute clearly deals with the rights of a purchaser against the vendor, not purchaser's attorney. Durham v. Ware, 153 Ga. App. 701, 266 S.E.2d 342, aff'd, 246 Ga. 84, 268 S.E.2d 668 (1980) (see O.C.G.A. § 44-5-36).

Negligent attorney liable for actual damages.

- An attorney at law employed to examine title to real estate who negligently fails to report an existing title imperfection is liable to the client for the actual damages sustained as a result of the attorney's negligence. Durham v. Ware, 153 Ga. App. 701, 266 S.E.2d 342, aff'd, 246 Ga. 84, 268 S.E.2d 668 (1980).

When vendor lacks title, title defect exists rather than deficiency.

- When a certain tract of land is described in a contract of sale by definite boundaries, and it later appears that the vendor has no title to a portion of the tract contained within the described boundaries, this is a defect in the vendor's title rather than a deficiency in quantity. Lawton v. Byck, 217 Ga. 676, 124 S.E.2d 369 (1962), later appeal, 218 Ga. 858, 131 S.E.2d 176 (1963).

When a certain tract of land was described in a contract of sale by definite boundaries, and it later appeared that the vendor had no title to a portion of the tract contained within the described boundaries, this was a defect in the vendor's title, as contemplated by former Code 1933, § 29-202 (see O.C.G.A. § 44-5-36), rather than a deficiency in quantity, as contemplated by former Code 1933, § 29-201 (see O.C.G.A. § 44-5-35). Lunsford v. King, 132 Ga. App. 749, 209 S.E.2d 27 (1974); Etheridge v. Fried, 183 Ga. App. 842, 360 S.E.2d 409 (1987).

Section applicable when purchaser seeks to mark notes "satisfied" on ground title has failed.

- When a purchaser of land sought to have delivered up and marked as "satisfied" certain notes given by the purchaser for deferred payments, on the ground that title to certain of the land so purchased had failed, the issue as to whether or not it was a sale by the tract or by the acre was not involved; in such a case the applicable law was that contained in former Code 1933, § 29-202 (see O.C.G.A. § 44-5-36), and not the provision of former Code 1933, § 29-201 (see O.C.G.A. § 44-5-35). Miller v. Minhinnette, 185 Ga. 490, 195 S.E. 425 (1938).

Applicable when sued purchaser sets up defense that vendor cannot make title.

- When a purchaser under a bond for title did not hold possession of all the land described in the bond, and was sued on notes representing the unpaid purchase price, the purchaser was permitted to set up as a defense the fact that the purchaser held possession of only a part and that the vendor cannot make title to the other part, and that, as a consequence of the defect in the title, the purchaser was entitled to a reduction in the purchase price, former Code 1933, § 29-201 (see O.C.G.A. § 44-5-35) having no application. Pope v. Williams, 70 Ga. App. 834, 29 S.E.2d 808 (1944).

Provision on breach of bond for title inapplicable unless all land lost.

- When a purchaser lost only a part of the land from a defect in title, the purchaser's remedy was fixed by this section; it would seem that § 44-5-67 did not apply unless all the land was lost. McConnell v. White, 91 Ga. App. 92, 85 S.E.2d 75 (1954).

Breach of contract as to title to portion of land entitles purchaser to rescission.

- Contract of sale of a tract of land described therein as measuring a certain number of feet in width and in depth binds the obligor to make title to the entire tract so described, and if the obligor has no title to a portion of the land, this is a material breach of the contract, entitling the purchaser to a rescission of the contract of sale at the purchaser's election. Coppage v. King, 96 Ga. App. 192, 99 S.E.2d 541 (1957).

"Relative value" defined.

- Expression "relative value" means relative value with the purchase price as a base value of the whole, for the reason that, when rescission is not sought, the only remedy is a reduction in purchase price. Any other interpretation might result in the recovery by a purchaser of more than the purchase price, if the land lost was worth more at the time of the breach of contract or bond than the whole land originally bargained for. McConnell v. White, 91 Ga. App. 92, 85 S.E.2d 75 (1954).

Deduction from agreed price in proportion to tract's value as represented, and true value.

- When a lot of land is sold by number tract, and one of the boundaries is misrepresented, whereby the purchaser fails to get some of the land the purchaser bought, the deduction to be made from the agreed price, in an action for the purchase money, is generally in proportion to the value of the tract with the boundaries as represented, and its value with the true boundaries, computing value as at the time when the sale was made. Woodstock Village v. Fowler, 154 Ga. App. 82, 267 S.E.2d 558 (1980).

Damage remedy in deficiency actions generally pro rata part of purchase money paid with interest.

- In actions for recovery for deficiency in land, the measure of damages generally is the pro rata part of the purchase money paid or to be paid for deficiency with interest. It is not less than this. However, if a part of such property may be of greater value than other portions, this is not necessarily a fixed rule. Halliburton v. Collier, 75 Ga. App. 316, 43 S.E.2d 339 (1947).

Measure of damage for breach by insurer under policy insuring title against encumbrances or encroachments is the difference between the value of the property when purchased with the encumbrance or encroachment thereon, and the value of the property as the value would have been if there had been no such encumbrance or encroachment. Beaullieu v. Atlanta Title & Trust Co., 60 Ga. App. 400, 4 S.E.2d 78 (1939).

Effect of constructive knowledge of prior recorded deed.

- Purchaser's right to recover damages is not defeated by constructive knowledge of prior recorded deed. Lunsford v. King, 132 Ga. App. 749, 209 S.E.2d 27 (1974); Mansell v. Pappas, 156 Ga. App. 272, 274 S.E.2d 588 (1980), aff'd, 165 Ga. App. 568, 302 S.E.2d 114 (1983).

In action for purchase price, vendees can set off value of land lost.

- When a vendor agrees to sell a designated tract of land to another and points out to the latter its boundaries, and the purchaser relies upon the representations of the vendor as to the boundaries, and where such boundaries include lands to which the vendor has no title, in consequence of which the purchaser loses the land, the purchaser, when sued on the notes given for the purchase money, can set off at law the value of the portion of the land so lost against the purchase money. This would be true whether the misrepresentations were designedly made by the vendor to deceive the purchaser, or were innocently made, if the vendee relied upon such misrepresentations in making the purchase and was thereby damaged. Halliburton v. Collier, 75 Ga. App. 316, 43 S.E.2d 339 (1947).

If the vendors are unable to put the title to any portion of the lands described by metes and bounds in the vendees and put the vendees in undisturbed possession thereof, the vendees in an action by the vendors for the purchase price may set off the value of that portion to which title and possession cannot be given by the vendors. McConnell v. White, 91 Ga. App. 92, 85 S.E.2d 75 (1954).

Defect in title found.

- There was a defect in title of a lot conveyed to an insured as the builder that conveyed the lot did not have superior title to a portion of the lot. Wilkinson Homes, Inc. v. Stewart Title Guar. Co., 271 Ga. App. 577, 610 S.E.2d 187 (2005).

Am. Jur. 2d.

- 23 Am. Jur. 2d, Deeds, § 184 et seq.

ALR.

- Doctrine of after-acquired title as between one who took before and one who took after common grantor or mortgagor acquired title, 25 A.L.R. 83.

Recovery by vendee of money paid under mistake of fact as to vendor's title, 36 A.L.R. 482.

Remedy of grantee in possession under deed with covenants of title, independently of those covenants, where the grantor's title is defective, 50 A.L.R. 180; 65 A.L.R. 1142.

Outstanding right of dower as breach of covenant of title or against encumbrances in deed or mortgage of real estate, 141 A.L.R. 482.

Marketability of title as affected by fact that grantor or mortgagor in chain of title acquired complete or perfect title after conveyance, 163 A.L.R. 437.

Specific performance at instance of purchaser with abatement for vendor's misrepresentation as to matters other than quantity or title, 7 A.L.R.2d 1331.

Broker's liability to prospective purchaser for refund of deposit or earnest money where contract fails because of defects in vendor's title, 38 A.L.R.2d 1382.

Measure and element of damages recoverable from vendor where there has been a mistake as to amount of land conveyed, 94 A.L.R.3d 1091.

Application of provision in land purchase agreement that it shall be null unless marketable title is delivered, where defect in title is created or permitted by vendor subsequent to execution of agreement, 13 A.L.R.4th 927.