Southeastern Land Fund, Inc. v. Real Estate World, Inc., 237 Ga. 227 (1976). Facts The plaintiff (seller) brought an action against the defendant (buyer). The allegations were about a contract of sale of a real estate. The plaintiff action sought to recover the price of $45,000 plus the interests. They also sought to recover their lawyer's fees upon a promissory note referred in the contract. The defendants appeal to is founded on the basis that the trial judged erred in grating summary judgment in favor of the plaintiff and denying a summary judgment and a counterclaim from the defendant. Issues Whether the contract provisions that the plaintiff and the court relied on to grant the motion for summary judgment was to be regarded as a penalty provision and therefore void under Georgia law. The plaintiff defaulted on his obligation to supply the marketable title and thus was in breach of the contract. Brief issue at appeal: Whether the trial judge erred in his judgment. Reasoning The trial judge erred in granting summary judgment in the action in the note and also in granting summary judgment for the principal while a right of recovery was still pending. The order of certiorari was granted as the court considered a real estate sales contract as one that allows payment of earnest money. The court held that this was a provision of liquidated damages. The appellate court held that such a provision in a contract of sale was a penalty and could not be enforced. The court reasoned that a buyer may sue the seller in the first instance in order for him to recover his earnest money if in the circumstances of the case the seller suffered no actual damage