Summary
In West v. Vandiviere, 192 Ga. 90 (14 S.E.2d 711), it was held that the admission of the defendant referred to in Code § 37-802, as applied to pleadings, was an admission of the fact of the contract, without an insistence on the Statute of Frauds; and that a defendant would be entitled to insist upon the benefit of the Statute of Frauds, even though he admitted the fact of the contract.
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13585.
APRIL 17, 1941. REHEARING DENIED MAY 16, 1941.
Specific performance. Before Judge Candler. Dawson superior court. September 14, 1940.
James H. Dodgen, for plaintiff.
H. G. Vandiviere and A. W. Vandiviere, for defendants.
An allegation in a petition for specific performance of a parol contract for the sale of land, that the defendant admits the contract, is not sufficient to take the case without the statute of frauds or to show an exception thereto.
( a) If in a suit on an agreement required by law to be in writing it does not appear whether or not it was in writing, the presumption would be that it was in writing. But no such presumption would arise as to a mere admission by one of the parties that he had made the contract; and in order for the plaintiff to rely on such admission as satisfying the statute of frauds, it would be incumbent on him to allege that such admission was in writing.
( b) In the instant case, it appearing from the petition that the alleged agreement was not in writing, and there being no sufficient allegation to show an exception to the statute, the petition did not state a cause of action, and was properly dismissed on demurrer.
No. 13585. APRIL 17, 1941. REHEARING DENIED MAY 16, 1941.
West brought suit for specific performance of an agreement with Vandiviere, alleging that on August 19, 1940, Vandiviere agreed to sell to West described land for a stated price, the purchase and sale to be consummated on August 26, 1940; that two days before that date West notified Vandiviere that he would be ready to pay the purchase-price agreed upon, but was then and there informed by Vandiviere that the latter could not carry out his agreement, for that he had, before August 24 but after August 19, given to another person an option to purchase. It affirmatively appears in paragraph 3 of the petition that the alleged agreement was in parol. Paragraph 7 is as follows: "Petitioner alleges that the defendant E. C. Vandiviere admits the parol agreement whereby he was to sell to your petitioner said lands herein described, at and for the sum herein specified, and admits that the purchase and sale was to be consummated on the 26th day of August, 1940." There was a general demurrer to the petition, and a special demurrer, as follows:
"Said petition does not as a whole, nor do any of its several paragraphs or parts, show a cause of action against said defendants. or either of them.
"Defendants demur especially to paragraph three of plaintiff's petition, wherein it is stated, `your petitioner and E. C. vandiviere entered into a verbal agreement whereby the said E. C. Vandiviere was to sell to your petitioner the lands before described at and for the sum of $2,800.00 cash,' for the reason that plaintiff has voluntarily set out in his said petition and affirmatively showed that said contract is in parol and as a matter of law any contract for sale of land, or any interest therein, or concerning them shall be in writing, and nowhere in said paragraph three nor any other paragraph in said petition does it appear that there has been any performance of said alleged parol agreement with reference to a contract for the sale of land and the payment of any money and possession of the premises described therein.
"Defendants demur especially to that portion of paragraph eight of plaintiff's petition wherein it is stated, `Petitioner alleges that the option given by the said defendant E. C. Vandiviere to Worth Vandiviere is null and void and of no force or effect, for the reason that a valid parol agreement had been made and entered into between this petitioner and said E. C. Vandiviere for the purchase of the lands herein described,' for the reason that it is affirmatively stated in said allegation that said alleged contract with plaintiff and defendant E. C. Vandiviere is oral, and nowhere does it appear that it was ever in performance by payment on the part of the plaintiff and acceptance on the part of the defendant E. C. Vandiviere of a purchase-price for said lands, and accompanied by possession of the plaintiff, and all contracts with reference to purchase of land shall be in writing unless payment has been made and accepted and possession taken." The demurrers were sustained, and West excepted.
The petition shows upon its face that the alleged agreement for sale of the land was in parol. The defendant's demurrer, raising as it did the contention that the alleged agreement was not in writing (Code, § 20-401), and that no facts were alleged to show any exception to the statute of frauds (§ 20-402), was properly sustained. But the real controversy arises over the provision in the Code, § 37-802, that "The specific performance of a parol contract as to land shall be decreed, if the defendant admits the contract. . ." There is a distinct allegation in the petition that the defendant admits the contract. Whether the admission there referred to was in writing, or was itself verbal, the petition does not disclose. In Lockhart v. White, 77 Ga. 786, this court reversed a judgment where the trial judge qualified a requested charge that specific performance of a parol contract as to land will be decreed if the defendant admits the contract, by adding thereto the following words: "that is, when both parties admit the contract, or when respondent comes in and admits it in his answer; the executors denied it." In the opinion in that case it was said: "We think it was error for the court to have qualified the request of plaintiff as he did, under the facts in proof as shown by the record, the facts being that Frost, while in life, had stated the land belonged to Lockhart; that he had sold the land to Lockhart. The contract could be proved by the admission of Frost, when in life; and as it appeared that Lockhart was in possession of the land at the time the admissions or statements of Frost were made; that he put valuable improvements upon the same; that they (Frost and Lockhart) were brothers-in-law; and that Frost was dead and Lockhart's lips closed, it will do no harm to grant a new trial in this case; the ends of justice seem to require it."
In a preliminary conference in the instant case, we invited briefs from counsel on the question whether the decision in Lockhart v. White, supra, should not be reviewed and overruled in so far as it held, or seems to have held, that an oral admission as to making the agreement will satisfy that part of the statute above quoted. A parol agreement for the sale of land, otherwise unenforceable under the statute, can not be made the basis of a suit for specific performance merely because it is alleged and proved that at some time, somewhere, the defendant orally admitted it. Even an admission to that effect in an answer will not be a sufficient basis for a decree of specific performance of an oral agreement for the sale of land, where the defendant duly invokes the statute of frauds. As early as 1850 this court ruled: "If a bill is filed to enforce a parol agreement respecting lands, and the defendant in his answer admits the contract, without insisting on the statute of frauds, the court will decree a specific performance, upon the ground that the defendant has renounced the benefit of the statute. But if the defendant should, by his answer, admit the parol agreement, and yet insist upon the benefit of the statute, he will be entitled to it, notwithstanding such admission." Hollingshead v. McKenzie, 8 Ga. 457.
What is now Code § 37-802 was contained in the Code of 1863, as § 3119, except that the word "contract" appeared as "judgment," which is believed to be a mere inadvertence. The section must be construed in the light of what had previously been ruled in Hollingshead v. McKenzie, since the section is not of statutory origin. The ruling in that case was followed in Douglass v. Bunn, 110 Ga. 159, 165 ( 35 S.E. 339), and in Mendel v. Miller, 134 Ga. 610 ( 68 S.E. 430). If it be the law that a defendant may in his answer admit the contract, and yet successfully urge the statute of frauds because it was verbal, it can not be that although, as in the present case, he urges the statute of frauds, the original contract being oral, he nevertheless will be bound if the plaintiff can show that he orally admitted the verbal agreement. Any such interpretation of the Code provision would virtually destroy the statute of frauds. We therefore hold that the decision in Lockhart v. White, supra, is unsound, and on formal review it is overruled in so far as it may be in conflict with what is now ruled, and with the other decisions herein before cited.
It does not appear from the petition whether the admission was in parol or in writing. While, if it did not so appear as to an agreement required by law to be in writing, the presumption would be that it was in writing ( Crovatt v. Baker, 130 Ga. 507, 61 S.E. 127), no such presumption would arise as to a mere admission by one that he made the contract; and in such case it would be incumbent on the plaintiff to allege that the admission was in writing, in order to satisfy the statute of frauds. The court did not err in sustaining the demurrer and dismissing the action. See further, on admitting the contract, Capital City Brick Co. v. Atlanta Ice Coal Co., 5 Ga. App. 436 ( 63 S.E. 562); Marks v. Talmadge Co., 8 Ga. App. 556 ( 69 S.E. 1131); 27 C. J. 371, § 448.
Judgment affirmed. All the Justices concur.