Opinion
15953.
OCTOBER 17, 1947. ADHERED TO ON REHEARING NOVEMBER 14, 1947.
Complaint for land. Before Judge Sloan. White Superior Court. April 19, 1947.
Joseph G. Collins and C. H. Edwards, for plaintiffs.
Joe K. Telford and Wheeler, Robinson Thurmond, for defendant.
1. A pleading which alleges a cause of action for any of the relief prayed should not be dismissed on general demurrer.
2. No error is shown in the amended grounds of the motion for new trial in this case.
3. The verdict for the defendant on her cross-action for specific performance was supported by the evidence as against all of the plaintiffs except C. C. Jarrard; and the judgment denying the motion for new trial is affirmed as to the plaintiffs, Mrs. Higdon, Mrs. King and Mrs. Crespo, and reversed as to C. C. Jarrard.
No. 15953. OCTOBER 17, 1947. ADHERED TO ON REHEARING NOVEMBER 14, 1947.
Mrs. Mozelle Higdon, Mrs. Henrietta King, Mrs. Jessie Crespo, C. C. Jarrard, Ralph Jarrard, and Janice Jarrard, by next friend, brought an action against Mrs. Bonnie Dixon to recover described real estate, together with rents and mesne profits. It was alleged: Mrs. Higdon, Mrs. King, Mrs. Crespo, and Mrs. Jarrard were heirs at law of J. M. Miller; Mrs. Jarrard died in October, 1945, leaving C. C. Jarrard, her husband, and Ralph and Janice Jarrard, her children, as her heirs at law. The defendant wrongfully destroyed a barn on the property and sold the material from such barn; she refused to pay rent, and refused to surrender possession of the property; she went into possession as a tenant and is estopped to claim the property adversely to the plaintiffs.
In her cross-action for specific performance, Mrs. Dixon alleged: On February 22, 1945, she made an oral contract with Mrs. Higdon, Mrs. King, and Mrs. Crespo, whereby they agreed to sell her the property described in the petition for $3250, and the parties named represented that C. C. Jarrard and the children would abide by any agreement they made; and that C. C. Jarrard later approved and agreed to the proposed sale. On the date the contract was made she gave a check payable to Mrs. King on First National Bank of Gainesville for $100. This check was given and accepted as a part payment on the property. Her possession of the property from February 22, 1945, and at all times thereafter was under the contract of purchase and sale. Shortly after February 22, 1945, and with the express consent and knowledge of the plaintiffs, she sold an old barn that had decayed and fallen down, and built a new barn at a cost of $300. She made other stated repairs and improvements on the property, and it was understood between the plaintiffs and the defendant that these things were done pursuant to the contract of purchase. After accepting the check for $100, the plaintiffs kept it from February 22, 1945, to November 16, 1945, without indicating that they did not intend to complete the agreement. The check was returned to her on the latter date by the plaintiffs with a letter in which they did not deny the contract. Shortly after February 22, 1945, she notified the plaintiffs that she was ready to pay the balance of the purchase-price, and on various occasions before the filing of the plaintiffs' suit she offered to pay them the entire purchase-price. The plaintiffs have refused to accept the money or to comply with their agreement. The plaintiffs demurred generally to the answer in the nature of a cross-action. The demurrer was overruled, and exceptions pendente lite were duly certified and filed.
On the trial, the testimony of the plaintiffs, Mrs. Higdon, Mrs. King, and Mrs. Crespo, was most vague, uncertain, and equivocal. A letter signed by the three plaintiffs to Mrs. Dixon, dated January 17, 1946, twelve months before the suit was field, was admitted in evidence, and read in part as follows: "Since we all three were mistaken about our right to sell the place on which you are now residing, it becomes our duty to ask you to pay the rental which you are now due and also the sum which you received for the old barn that you sold." Direction was given thereafter in the letter as to whom payment was to be made, with a statement that it was necessary for a settlement of the estate of Mrs. Jarrard. The following appears in the testimony of Mrs. Crespo: "I didn't say definitely how much I would take; that is, if all the rest consented. I agreed to take $3250 for the property if all the rest consented and agreed. . . As to the reason we refused to go through with the contract, there was no contract; it was all verbal, what was said. We agreed to sell it to her on condition if everybody agreed to it." The witness had previously testified that not all of the owners of the property agreed to the contract. Mrs. King testified generally that the proposed sale was all on "conditions" that they all agree, and that they never all agreed. The following appears in her testimony about the sale: "This $3000 offer, we were not going to take it; I followed her [Mrs. Dixon] to the door and told her it certainly would not be considered at all for less than $3250. Of course I didn't have any final word from them; that was just a suggestion on my part. The check was taken under that condition." The witness had previously testified that the three plaintiffs above named were together in the home of one of them. With reference to the barn, Mrs. King testified: "I think Mrs. Dixon called me over long distance and asked me about it and said it was about to fall down, and I said, `As far as I know, it will be all right for you to tear it down;' she said it was about to fall down and [was] dangerous. That was sometime after the conversation about the purchase proposition. How long after that, I just couldn't tell you. I know for certain it was sometime after that." Mrs. Higdon and C. C. Jarrard denied that they agreed to sell the property to Mrs. Dixon. Mrs. Dixon's testimony supported her pleadings, except as will be noted in the opinion. J. P. Saxon testified that he rented a part of the property from Mrs. Dixon after she claimed to have bought it; that he had previously rented it from the plaintiffs. The evidence established that Mrs. Higdon, Mrs. King, and Mrs. Crespo owned a seven-eighths interest in the property, and that Mrs. Jarrard in her lifetime owned a one-eighth interest in the property. At the time the contract was alleged to have been made, Mrs. Jarrard was incompetent, and C. C. Jarrard, her husband, was acting as her guardian.
The issues made by the pleadings and evidence were submitted to the jury in the form of questions. The jury's verdict found for the contract as claimed by Mrs. Dixon. The court entered a judgment requiring the plaintiffs, Mrs. Higdon, Mrs. King, and Mrs. Crespo, to convey their seven-eighths interest in the property for a pro rata part of the purchase-price of $3250, and that C. C. Jarrard convey one-third of a one-eighth interest, as an heir at law of his wife, Mrs. Blanche Jarrard.
The plaintiffs' motion for new trial, as amended, was overruled. Error is assigned on the exceptions pendente lite to the overruling of the demurrer, and to the judgment denying the motion for new trial.
1. "A demurrer denies the right to the relief sought, in whole or in part, admitting all properly pleaded allegations of the petition to be true." Code, § 81-304. Only properly pleaded allegations are considered as true in passing upon the demurrer. Smith v. McWhorter, 173 Ga. 255 ( 160 S.E. 250); City of Albany v. Lippitt, 191 Ga. 756, 759 ( 13 S.E.2d 807). Where no special demurrer is filed, all allegations must be treated as well pleaded except those which are clearly conclusions of the pleader. Citizens So. Nat. Bank v. King, 184 Ga. 238, 247 ( 190 S.E. 857). A pleading that sets forth a cause of action for any of the relief prayed will not be dismissed on general demurrer. Bazemore v. Savannah Hospital, 171 Ga. 257 ( 155 S.E. 194); Johnson v. Key, 173 Ga. 586 ( 160 S.E. 794); O'Neal v. O'Neal, 176 Ga. 419 (4) ( 168 S.E. 262); Sutton v. Adams, 180 Ga. 48 (1) ( 178 S.E. 365).
Tested by the foregoing rules, the response of Mrs. Dixon, in the nature of a cross-action, for specific performance of an oral contract for the sale of the seven-eighths interest of Mrs. Mozelle Higdon, Mrs. Henrietta King, and Mrs. Jessie Crespo, in the lands described, alleged a cause of action. The demurrer of the plaintiffs in error attacked the petition as falling within the statute of frauds. "Any contract for sale of lands, or any interest in, or concerning them," to be binding on the promisor, must be in writing, signed by the person to be charged therewith, or some person by him lawfully authorized. Code, § 20-401 (4). This section does not apply "where there has been such part performance of the contract as would render it a fraud of the party refusing to comply, if the court did not compel a performance." § 20-402 (3); Baxley Hardware Co. v. Morris, 165 Ga. 359 ( 140 S.E. 869). "The specific performance of a parol contract as to land shall be decreed, if the defendant admits the contract, or if it be so far executed by the party seeking relief, and at the instance or by the inducements of the other party, that if the contract shall be abandoned he cannot be restored to his former position. Full payment alone accepted by the vendor, or partial payment accompanied with possession, or possession alone with valuable improvements, if clearly proved in each case to be done with reference to the parol contract, shall be sufficient part performance to justify a decree." Code, § 37-802.
Construing the properly pleaded allegations of the response as true on demurrer, and most strongly against the pleader, the defendant's possession was by virtue of a contract of sale, and improvements of the property were made with the knowledge and approval of the plaintiffs, and in connection with the contract of sale, and such possession and improvements are sufficient to remove the cause from the prohibition of the Code, § 20-401 (4), and to bring it within the provisions of § 20-402 (3). Vickers v. Robinson, 157 Ga. 732 (6) ( 122 S.E. 405).
The plaintiffs in error insist that their demurrer should have been sustained because the defendant did not allege the value of the premises, and cite Coleman v. Woodland Hills Co., 196 Ga. 626 ( 27 S.E.2d 226). In the Coleman case the plaintiff, a transferee of a contract of sale, failed to allege the value of the premises so as to "enable the court to determine that the contract was fair, just, and not against good conscience," and it was held that no right to the relief sought was set forth. In the Coleman case it appears that the court was not given any information as to the value of the property, nor any facts from which the value could have been determined by the court. In the present case the property is a residence in the Town of Cleveland. The plaintiffs in their petition to recover the property alleged a rental value of the premises, which, on an annual basis, would amount to $180, or six percent on $3000. The alleged contract of sale being for a price of $3250, the trial court may have determined that the rental value alleged reflected the actual value, and that the contract was therefore fair and just. Rental value of improved property is a fact or basis which may properly be used in determining actual value. Johns v. Nix, 196 Ga. 417 (3) ( 26 S.E.2d 526). The rule stated in the Coleman case will not be extended and given application here, where facts are alleged from which the value of the premises could be determined by the court.
The demurrer attacked the petition on the ground that no sufficient tender was alleged. The amendment supplied this allegation, if it was not alleged with certainty in the petition. In any event, repudiation of the contract by the plaintiffs was alleged, and allegations of continuing tender were not necessary. Black v. Milner Hotels, 194 Ga. 828 (4) ( 22 S.E.2d 780); Irvin v. Locke, 200 Ga. 675 ( 38 S.E.2d 289). Other grounds of the demurrer are not argued in the brief of counsel, but the brief contains a statement that they are insisted upon. They have been examined, and are without merit.
2. Grounds of the amended motion for new trial, (1) that no valid tender was made by Mrs. Dixon, (2) that there was no evidence of part performance to take the oral contract out of the statute of frauds, and (3) that the oral contract was not proved with clearness and beyond a reasonable doubt, are elaborations of the general grounds, and are dealt with in division 3 of this opinion.
Ground 4 of the amended motion for new trial assigns error on the admission in evidence of a letter from counsel for the defendant in error to the plaintiffs in error as being a self-serving declaration. "Declarations of a person in possession of land are admissible to characterize the possession, as bearing on whether it was permissive or adverse, when that fact is relevant, but not to show the truth of the statements without more." Causey v. White, 143 Ga. 8 (7) ( 84 S.E. 58); Code, § 38-308; Copeland v. Jordan, 147 Ga. 601 (7) ( 95 S.E. 13).
Special ground 5 assigns error on the charge to the jury that, should they find from the evidence that the plaintiffs had expressed to Mrs. Dixon their refusal of the purchase-price, then there would be no necessity under the law for Mrs. Dixon to have made a legal tender. The charge is not objected to as being unsound as an abstract principle of law, but it is contended that there was no evidence to support the charge. This contention is clearly without merit.
3. Counsel for the plaintiffs in error insist that this case should be reversed on the general grounds, and quote at length from Neely v. Sheppard, 185 Ga. 771 ( 196 S.E. 452), and Hotel Candler v. Candler, 198 Ga. 339 ( 31 S.E.2d 693). The cases relied upon by counsel have been carefully examined, and they are so divergent on their facts as not to be in point in this case.
Mrs. Higdon in her testimony contended that she never agreed to sell the property to Mrs. Dixon. The statement in the letter signed by her contradicts her verbal testimony, and the jury was authorized to believe that she was speaking the truth at the time she signed the letter. Especially is this true since Mrs. Dixon testified positively as to the verbal contract. Mrs. Dixon's testimony fully supports the averments of her petition in every way material to her cause as against Mrs. Higdon, Mrs. King, and Mrs. Crespo, except that her testimony as to tender is uncertain. After testifying that she made a valid tender, she concluded her testimony with the statement that she would not pay the money until she received a deed to the property. It is unnecessary, however, that any ruling be made as to Mrs. Dixon's testimony on the question of tender. The three real principals to the contract with Mrs. Dixon (Mrs. Higdon, Mrs. King, and Mrs. Crespo) repudiated their contract and notified Mrs. Dixon that they would not go through with it, approximately a year before their suit was filed. Such conduct on the part of the plaintiffs relieved Mrs. Dixon of making a valid, legal tender. Roberts v. Mayer, 191 Ga. 588 (3) ( 13 S.E.2d 382); Gilleland v. Welch, 199 Ga. 341 ( 34 S.E.2d 517); Groover v. Brandon, 200 Ga. 153 ( 36 S.E.2d 84).
The finding of the jury that Mrs. Higdon, Mrs. King, and Mrs. Crespo made a contract with Mrs. Dixon is supported by the check given by Mrs. Dixon on February 22, 1945, made payable to Mrs. King, with the notation, "Initial payment on Miller home [the plaintiffs' petition identified the property as the J. M. Miller home] located in Cleveland, Ga."; the letter to Mrs. Dixon, signed by the three plaintiffs and notifying her that they would not complete the sale; the admissions of these plaintiffs in their testimony; and Mrs. Dixon's testimony.
At the time of the alleged contract Mrs. Jarrard was insane and C. C. Jarrard was her guardian. Upon her death in October, 1945 (approximately eight months after the making of the alleged contract), it was the duty of the husband, under the Code, § 49-618, to administer the estate of the wife for whom he was guardian. The uncontradicted evidence of Mrs. Dixon and Jarrard shows that he sold the interest of his wife in the property at public sale, and that it was bid in for his son. While under the law of this State, upon the death of any person having an estate in realty, the realty descends immediately to the heirs at law, it is subject to administration (in this case by the guardian) for the payment of debts and distribution to the heirs at law. Code, § 113-901. Jarrard never at any time had any interest in the property which he could have conveyed under the terms of the contract as claimed by Mrs. Dixon. The evidence established that he sold his wife's interest in the property at public sale before the present case was filed. The sale of the wife's interest is not attacked, nor does Mrs. Dixon seek to have it vacated or set aside. Consequently the verdict of the jury for specific performance as to C. C. Jarrard is clearly unauthorized.
The trial court properly decreed that Mrs. Dixon might have specific performance of the contract as to Mrs. Higdon, Mrs. King, and Mrs. Crespo. See Code, § 37-806. The judgment in favor of Mrs. Dixon against the three parties named is affirmed on condition that Mrs. Dixon file a written acceptance (accompanied by proper proportionate payment) of the judgment and decree in her favor against Mrs. Higdon, Mrs. King, and Mrs. Crespo, on or before the time when the remittitur from this court is made the judgment of the trial court. If such written acceptance is not filed and payment made as herein directed, the judgment as to the three parties named will stand reversed. The judgment denying the motion for new trial as to C. C. Jarrard is reversed.
Judgment affirmed in part, on condition, and reversed in part. All the Justices concur, except Duckworth, P. J., and Candler, J., who dissent; and Wyatt, J., who took no part in the consideration or decision of this case.