John Rowell, Jr. and Roger Rowell filed a petition in November 2004, seeking an order requiring Jean Weeks to specifically perform a November 1992 contract for the sale of land. The Bibb County Superior Court granted summary judgment compelling specific performance, and Weeks appeals. For the following reasons, we reverse. The November 6, 1992 sales contract between the Rowells and Weeks provided for Weeks to sell the Rowells 100 acres of land in Laurens County for $45,000 upon delivery at closing of a warranty deed conveying fee simple title to the property. The sales contract contained no specific time requirement for closing, but provided only that the closing would occur “as soon as Seller is able to obtain clear deed & title.” The sales contract stated that Weeks acknowledged receipt of a check for $3,000 from the Rowells as earnest money to be applied to the purchase price at closing. Special stipulations to the sales contract stated that the closing would occur “as soon as purchaser is able to obtain clear deed and title” and that, from the date of the sales contract until the closing date, the purchasers shall rent the property at issue and “$3,000.00 already paid to Seller will cover this rental period.” The special stipulations further provided that “Buyers have paid $3,000.00 to Jean Weeks” and that “on date of closing, Purchasers will pay Jean Weeks full purchase price of $45,000.00 at which time the $3,000.00 earnest money will be refunded to the Purchasers.”
John Rowell testified by deposition that, in conjunction with the sales contract for purchase of the land, he and his brother, Roger Rowell, also purchased a mobile home located on the land and other personal property from Weeks for the sum of $2,500. According to John Rowell, the $2,500 paid to Weeks by check for the mobile home, plus another $500 deposit on the land paid by check to Weeks, covered both the $3,000 earnest money under the sales contract and the rent for the subject property.1 Deposition testimony given by John and Roger Rowell and an affidavit given by John Rowell shows that they were aware prior to entering into the November 1992 sales contract that, because of a pending suit filed against Weeks challenging her title to the subject property, Weeks did not have clear title, and that nobody knew how long it would take for Weeks to get clear title. John Rowell testified that Weeks stopped by from time to time after 1992 to inform them that she was working on getting a clear title, and that he knew “this thing just kind of had to go on hold.”
