Bell v. Sappington

• Decision Date: 13 July 1900
• Citation: 111 Ga. 391,36 S.E. 780
• Parties: BELL. v. SAPPINGTON et al.
• Court: Georgia Supreme Court

111 Ga. 391

36 S.E. 780

BELL.

v.SAPPINGTON et al.

Supreme Court of Georgia.

July 13, 1900.

CONTRACT—CONSIDERATION—STATUTE OF FRAUDS.

1. A contract made by a parent with her daughter and the latter's intended husband, to the effect that if the contemplated marriage is solemnized, and the husband will expend the necessary amount of money in building a dwelling house upon a vacant lot belonging to the mother, she will convey the lot to the daughter, is supported by a sufficient consideration.

2. When such a contract, though resting entirely in parol, has been performed by the solemnization of the marriage and the improving of the lot at the son-in-law's expense, as agreed, it is taken out of the operation of the statute of frauds.

(Syllabus by the Court.)

Error from superior court, Pulton county; J. H. Lumpkin, Judge.

Action by T. H. Sappington and S. K. Sap-pington against Lucy M. Bell. Judgment for plaintiffs, and defendant brings error. Affirmed.

P. F. Smith and R. R. Shropshire, for plaintiff in error.

Abbott, Cox & Abbott, for defendants in error.

COBB, J. The material averments of the petition in the present case are as follows: The petitioners are T. H. Sappington and Mrs. S. K. Sappington, and the defendant is Mrs. Lucy M. Bell, the mother of Mrs. S. K. Sappington. Petitioners are husband and wife, having intermarried in February, 1898. In contemplation and consideration of such marriage, petitioners and the defendant entered into a tripartite contract, by which it was agreed among them that the marriage should be solemnized, and that T. H. Sappington should furnish material necessary to build a dwelling house upon a one-acre lot belonging to the defendant, and that the defendant after the house was built would make to Mrs. S. K. Sappington a deed in fee simple to the lot. It was understood between the parties that the money expended by T. H. Sappington for the material to be used in erecting the house was "in equity to be considered as paid and furnished" in behalf of his wife. Petitioners fully and in all respects performed and carried out their part of the contract, T. H. Sappington buying and furnishing the material necessary to build the house. During the time the house was being built petitioners gave their time and attention to the building of the same. On November 24, 1898, defendant asked petitioner T. H. Sappington to have a deed to the lot in question prepared for her to make and deliver in accordance with her contract. This deed was prepared and submitted to the defendant, and she recognized and stated that it properly described the lot in controversy, and promised that she would sign and deliver it at once. Shortly after the house was built the petitioner Mrs. S. K. Sappington moved into the same without any objection being made by the defend ant, who also moved into the house, and remained there until May, 1899. At that time she removed, and left petitioners in exclusive possession, T. H. Sappington having moved into the house, and they have remained in possession until the present time, and have given time, care, and labor to the preservation, protection, and taking care of the premises, treating it as the property of Mrs. S. K. Sappington, and paying the taxes thereon. Shortly after she left the premises the defendant placed the property in the hands of real-estate agents for sale, and has attempted to sell the property, defendant claiming that petitioners are tenants at sufferance of hers. Petitioners have requested defendant to at least pay back the money expended in building the house, and for taxes on the same; but she has refused either to do this, or to make the deed as she agreed to do. Petitioners pray—First, that defendant be decreed to make and deliver to Mrs. S. K. Sappington a fee-simple deed to the premises in dispute; second, that, if for any reason this cannot be done, the defendant be decreed to pay to Mrs. Sappington the sum expended in building the house, besides interest, and the amount expended by petitioners as taxes on the property, this amount to be reduced by the value of the premises for rent during the time petitioners have been in possession; third, that until the hearing an injunction be granted restraining defendant from alienating, incumbering, or "in any wise putting a cloud upon the title" of the property, or changing the status thereof in any way. The defendant demurred to the petition on various grounds, among them being that there was no equity in the petition; that the contract sought to be enforced was not in writing, as required by the statute of frauds; that there was no consideration for the promise of defendant flowing from S. K. Sappington; that, the only possible consideration being the contemplated marriage, the subsequent marriage was not such part performance as took the case out of the statute of frauds. The court overruled the demurrers, and granted the injunction as prayed, and to each of these judgments exception was taken by the defendant.

We do not think there was any error in overruling the demurrers to the petition. There was equity in the petition, and the same does not seem to be subject to any of the objections set up in the special demurrers....