MAY 10, 1945.
Specific performance. Before Judge A. L. Etheridge. Fulton superior court. February 2, 1945.
Fraser Irwin, for plaintiff in error.
James H. Dodgen, contra.
The petition, seeking specific performance of a parol contract to convey land, being fatally defective because of its failure to show that the petitioner had performed her part of the agreement, was subject to the general demurrer.
No. 15155. MAY 10, 1945.
The exception is to a judgment overruling a general demurrer to a petition for specific performance of an alleged parol contract to convey land, and for injunctive relief.
Elizabeth Whitmire, formerly known as Elizabeth Christopher, filed in Fulton superior court, against Dene Christopher, a petition which as twice amended alleged substantially the following: In October, 1931, the petitioner separated from her husband, Dr. A. L. Whitmire, and instituted a suit for divorce against him in New Orleans, Louisiana. Early in 1932, she became acquainted with the defendant, who was recuperating from a nervous breakdown. He knew that the above-mentioned divorce could not have been granted in less than four years under the Louisiana law, and discussed with her the question of her obtaining a divorce in another jurisdiction. By his ardent manner and their constant association, she developed a sincere affection for him. After their relation reached the point of mutual love and affection, the defendant, who was traveling seven southern States by automobile and conducting his correspondence without the aid of a stenographer, insisted that the only way he would regain his health and fortune would be for the petitioner to marry him and care for him. He represented that he was familiar with the divorce laws of other States, and discussed the feasibility of securing a Mexican divorce. She was not familiar with the divorce laws, but told him that she was willing to marry him and help him in every way when, and if, she could obtain a legal divorce. She then took the matter up with her attorney, who advised her that in his opinion a divorce procured in Mexico would not be legal. When she told the defendant what her attorney said, he insisted that she disregard such advice and go ahead and obtain a divorce in Mexico. He was so flattering in his expressions of devotion to her, that she agreed when he insisted that the only sensible thing was for them to take the shortest cut possible in obtaining a divorce. Because of her belief in him, she accepted his statements in regard to obtaining divorces in other jurisdictions, and he instructed her in every detail in obtaining a Mexican divorce, and offered to finance the same. When she notified him that a Mexican divorce had been granted, he induced her to come to Atlanta to be married immediately, stating that it would be weeks before he could go to New Orleans. She came to Atlanta on October 21, 1933. She and the defendant then went to Decatur, where they procured a marriage license. In response to questions asked by the ordinary and by the minister, the defendant stated that she had procured a Mexican divorce, and that he had thoroughly investigated the validity of the same, and found that she had a valid divorce. All of the statements made to her by the defendant with reference to the validity of the Mexican divorce were false and fraudulent, and were made for the purpose of deceiving her, and by reason of the deception she entered into the marriage ceremony. At the time the defendant proposed marriage to her, and at the time he importuned her to expedite the procuring of her divorce, he stated that he was desperately in need of her to aid him in regaining his health, and that, if she would marry him and aid and assist him in the carrying on of his business and the regaining of his health, he in turn would buy her a home for herself and her two children, who were the issue of her former marriage. After the date of the marriage ceremony with the defendant in October, 1933, she did assist him in regaining his health and in making business connections. She traveled with him for about two years, did part of the driving of his automobile, did all of his clerical work, and attended to his correspondence. Her services as clerk and bookkeeper were reasonably worth $150 per month for a period of two years, aggregating the sum of $3600, while her services in helping to care for his physical condition during that time were reasonably worth $40 a month, aggregating the sum of $960, making a total of $4560. After the marriage ceremony in October, 1933, to wit, in December, 1935, he consented to purchase for her a described house and lot in Atlanta, known as 222 Rumson Road, in accordance with the contract. There was an outstanding loan at the time of the purchase, and he took the title to the equity in himself, stating to her that he would hold the title for her until the loan was paid off, and stating further that he was taking the title in this manner as a matter of convenience in handling the loan, and that he would convey title to her. After his purchase of the home she moved into the house, took possession of the same, has remained there ever since, and is now living in the house. The defendant from time to time acknowledged that he held the title for her benefit, and that it was her property, but he failed and refused to convey title to her. She has well earned, by services rendered and sacrifices made, all of the equity, and such equity rightfully belongs to her, notwithstanding the legal title remains in the defendant. Since the institution of the original suit, he has threatened to sue out a dispossessory warrant. She was put in possession by the defendant, has remained in possession for over ten years, and she bona fide claims to be the owner of the equitable title by reason of the services which she performed for the defendant, and as a gift and relinquishment to her of all right, title, and interest. The value of the equity in the property does not exceed the value of her services, and she has fully performed her contract with the defendant. She has no adequate remedy at law, and the defendant being insolvent, with the exception of the property in question, unless a court of equity requires him to specifically perform his part of the contract, she will suffer irreparable damages. She prayed for: (1) process; (2) specific performance of the contract, subject to the loan on the property; (3) injunction to prevent the defendant from, (a) encumbering or transferring the property, (b) interfering with her occupancy of the premises, (c) taking any steps to oust her until a hearing could be had; and (4) for general relief.
A party seeking specific performance of a contract must show substantial compliance with his part of the agreement; otherwise he is not entitled to a decree. Code, § 37-806; 4 Pomeroy's Eq. Jur. (5th ed.), § 1407; Robinson v. Vickers, 160 Ga. 362 (2) ( 127 S.E. 849); Ledbetter v. Goodroe, 179 Ga. 69 (4) ( 175 S.E. 250); Lee v. Lee, 191 Ga. 728 ( 13 S.E.2d 774). The allegations of the alleged parol contract were in substance, that, if the petitioner would get a divorce, marry the defendant, aid him in regaining his health, and assist him in carrying on his business, he would buy her a home. Under a proper construction of the petition, marriage was the principal consideration. Accordingly, the contention of the petitioner that the attempted marriage was incidental to the main consideration, and that the defendant's real object was to secure the services and ministrations of the petitioner, is not well taken. While the allegations of the petition show that the petitioner did not get a valid divorce from her former husband and that the attempted marriage between the parties was void ( Christopher v. Christopher, 198 Ga. 361, 31 S.E.2d 818), it is insisted that her effort to obtain a divorce in a court having no jurisdiction was induced by the defendant's deceit by fraudulently representing that a divorce obtained in Mexico would be valid, and that in the circumstances she has substantially complied with her contract. She was not competent to enter into a second marriage without first having obtained a divorce from her former husband. Regardless of whether or not she was presumed to know the law, as to which see Harper v. Atlanta West Point R. Co., 33 Ga. App. 259, 265 ( 125 S.E. 885), the alleged representations by the defendant, to the effect that a divorce procured in another jurisdiction would be valid, were expressions of opinion as to the law, and did not in law constitute fraud and deceit. Claxton Bank v. Smith, 34 Ga. App. 265 ( 129 S.E. 142); Beckman v. Atlantic Refining Co., 53 Ga. App. 671 (2) ( 187 S.E. 158); Salter v. Brown, 56 Ga. App. 792 ( 193 S.E. 903); National Life c. Ins. Co. v. Parker, 67 Ga. App. 1, 8 ( 19 S.E.2d 409); Bernstein v. Peters, 69 Ga. App. 525, 534 ( 26 S.E.2d 192). Furthermore, as illustrating that she should not have relied upon such representations, it appears that she had been advised by counsel, representing her in a divorce action in Louisiana, that such Mexican divorce would be invalid.
In view of what has been said, it becomes unnecessary to pass upon the question whether the agreement to obtain a divorce would render the whole contract void as against public policy. See, in this connection, Guffin v. Kelly, 191 Ga. 880, 889 ( 14 S.E.2d 50).
The petition does not seek to recover upon the theory of a parol gift, nor is it alleged that valuable improvements were erected upon the property on the faith of the donor's promise or declared intention to make a gift. Code, §§ 37-802, 37-804; Johns v. Nix, 194 Ga. 152 ( 20 S.E.2d 758).
The question also arises as to whether the petition should be sustained because it contains enough to entitle the petitioner to a money judgment against the defendant on account of the services rendered to him. The prayers were for process, specific performance, injunction to prevent interference with the petitioner's occupancy of the property, and "that she may have such other and further relief as to the court may seem just and proper." Considering all of the allegations and prayers, it is clear that the purpose of the petition was to obtain a decree for specific performance of a parol contract to convey land, and to enjoin the defendant from interfering with the petitioner's occupancy of the house and lot. Her object was to have the court declare that she was the owner of the equitable title. While the defendant may be liable to pay her for her services, as set forth in the petition, such liability, if any, would arise out a relation of debtor and creditor. That he may have perpetrated a moral fraud upon her, gives her no title, legal or equitable, to property acquired by him in his own right, although it may have been purchased with his ill-gotten gains; for, to compensate a person upon whom a fraud has been committed, the law affords full relief by providing for the recovery of damages. Schmitt v. Schneider, 109 Ga. 628, 631 ( 35 S.E. 145); Hawkins v. Hawkins, 166 Ga. 153 (3) ( 142 S.E. 684). There is no allegation that the defendant is indebted to the petitioner in any amount, and there is no prayer for a money judgment. Where there is a special and a general prayer, the petitioner under the general prayer may have such other relief only as is consistent with the case as made in the petition, and with the special prayer. Butler v. Durham, 2 Ga. 413 (3); Peek v. Wright, 65 Ga. 638 (2); Empire Hotel Co. v. Main, 98 Ga. 176, 183 ( 25 S.E. 413); Schmitt v. Schneider, supra, Hairalson v. Carson, 111 Ga. 57 ( 36 S.E. 319); White v. Sikes, 129 Ga. 508 ( 59 S.E. 228, 121 Am. St. 228); Phillips v. Kelly, 176 Ga. 111 ( 167 S.E. 281). In the present case, the prayer for general relief, considered in connection with the entire petition, was insufficient to authorize the finding of a money judgment in favor of the petitioner, because such relief would not be germane to the prayer for specific performance and for injunction. The case at bar differs in its facts from Wilson v. Groover, 146 Ga. 369 ( 91 S.E. 113); Broderick v. Reid, 164 Ga. 474 (2) ( 139 S.E. 18); Sanders v. Jones, 166 Ga. 186 (4) ( 142 S.E. 680); Monroe v. Diamond Match Co., 182 Ga. 438 (3) ( 185 S.E. 814); Bowers v. Dolen, 187 Ga. 653 (5), 659 ( 1 S.E.2d 734); Matson v. Crowe, 193 Ga. 578 (4) ( 19 S.E.2d 288); Raines v. Shipley, 197 Ga. 448 (5) ( 29 S.E.2d 588); and similar cases, where the relief allowed under a general prayer was germane to the prayer for specific relief.
Under the foregoing principles, the petition failed to allege a cause of action, and the court erred in overruling the general demurrer.
Judgment reversed. All the Justices concur.