ON MOTION FOR REHEARING. It appears from the record that R. L. Kytle, as executor of his father's estate, "entered into some contract or arrangement" with S.C. Moon and J. E. Davis to survey, plat, and sell for him certain lands belonging to his father's estate. Moon and Davis surveyed and divided the land into tracts and made a blue print thereof, and sold at public auction tract 2, which the blue print showed contained 56.6 acres, and tract 6, which the blue print showed contained 70.2 acres, to A. C. Collins, he being the highest bidder.
The defendant in error in his motion for rehearing still earnestly contends that the sale was by the acre, because bids by the acre were invited at the sale and he so bid, and the land was knocked off to him at $16.75 per acre, and he paid that price for the number of acres as shown by the blue print, and, therefore, is entitled to recover for the alleged deficiency in the land at the price of $16.75 per acre.
The Code, § 96-114, provides: "In case of sales by auction, the auctioneer shall be considered agent of both parties, so far as to dispense with any further memorandum in writing than his own entries." The record does not disclose that any memorandum of sale was made by the auctioneer or auction company, but after the land was bid off by Collins he went to the home of R. L. Kytle, and he, as executor of the estate of Calvin Kytle, made a deed to Collins to tracts 2 and 6 as containing 126.8 acres, the said tracts being described in the deed as shown by the above statement of facts.
We think this deed shows a sale of land by the tract as pointed *Page 113 out in the above opinion in this case, and that, under the facts as disclosed by the record, parol evidence, to the effect that the land was offered for sale and was bid off by the purchaser at a named price per acre, is incompetent and insufficient to show that the sale was by the acre. Turner v. Rives, 75 Ga. 606;Walker v. Bryant, 112 Ga. 412 (5), 417 (37 S.E. 749);Roberts v. Investors Savings Co., 154 Ga. 45 (5) (113 S.E. 398); Taylor v. Fowler, 155 Ga. 654 (118 S.E. 212);Blaylock v. Hackel, 164 Ga. 257 (138 S.E. 333);Stonecypher v. Georgia Power Co., 183 Ga. 498 (189 S.E. 13). The deed represents the final contract of sale between the parties, and in the absence of actual fraud, as in the present case, and where there is no proceeding seeking rescission or reformation of the deed, all previous transactions between the parties in connection with the sale are merged in the deed. This suit is not a proceeding for rescission or reformation of the deed but is one, based on fraud, for recovery of an alleged deficiency of land under a sale which the deed shows to have been made by the tract, and where the evidence fails to show any intentional or actual fraud.
Furthermore, mere testimony that the land was offered for sale by the acre and was so bid off by the purchaser, without also a showing that the auctioneer, as agent of both parties, made a memorandum of such a sale, or that the parties themselves signed such a memorandum, would not evidence a sale by the acre. InLummus Real Estate Auction Co. v. Brown, 49 Ga. App. 592 (176 S.E. 693), it was held: "Although an auctioneer in selling land may act as the agent of the owner, no contract of sale arises between the owner and a successful bidder, in the absence of a memorandum of the contract of sale, made by the auctioneer, who is the agent for both parties for that purpose. Civil Code (1910), § 4107 [Code of 1933, § 96-114]. Where no memorandum is made by the auctioneer, and there appears on his auction book only the signature of the successful bidder, there has arisen no contract of sale between the successful bidder and the owner." So, in the kind of a proceeding as here presented, in the absence of intentional or actual fraud, where the deed between the parties shows a sale by the tract, there can be no recovery by the purchaser for a deficiency in the land.
Rehearing denied. Stephens, P. J., and Felton, J., concur inthe denial of a rehearing, but adhere to the views expressed bythem as above. *Page 114