Hancock v. Hancock
| Decision Date | 06 July 1967 |
| Docket Number | No. 24115,24115 |
| Citation | 223 Ga. 481,156 S.E.2d 354 |
| Parties | Arvin Marion HANCOCK v. William Sanford HANCOCK. |
| Court | Georgia Supreme Court |
Syllabus by the Court
Since there was no genuine issue as to any material fact the trial judge properly granted a summary judgment decreeing specific performance of the agreement for division of property devised to the parties.
Floyd H. Wardlow, Jr., Ashburn, for appellant.
John R. Rogers, Ashburn, for appellee.
The grant of a summary judgment decreeing specific performance of an agreement for equal division of certain property, and other relief, is the subject matter of this appeal. The judgment complained of arose from a suit filed in the Superior Court of Upson County by Arvin Marion Hancock against his brother William Sanford Hancock. In granting the summary judgment the trial judge had before him the petition, answer and cross bill, depositions of both parties, and the affidavit of the plaintiff.
The petition, insofar as material here, made the allegations which follow. The plaintiff is the owner of a tract of land in Turner County which he acquired under his mother's will. This will devised to the defendant a life estate in a house and lot in Upson County, with remainder to his children. A purported agreement between the plaintiff and the defendant to equally divide the property acquired by them under this will is recorded in Turner County. The agreement, under date of January 10, 1966, recites in substance that the mother of the parties died leaving a will which was about to be opened and read; that they, her only heirs, agreed that it should be probated; and that after probate and full administration of her estate, 'all of the property left to * * * (plaintiff and defendant) will be equally divided among * * * (them), share and share alike.' This agreement was executed upon a misrepresentation of material facts made wilfully to deceive by the defendant, and innocently acted upon by the plaintiff, who was prevented from discovering the truth by the fraud of the defendant. From the circumstances surrounding execution of the agreement there arose a confidential relationship and duty to communicate material facts, and the failure to so communicate constituted fraud. The plaintiff, by reason of the defendant's acts, was led to believe that the purported agreement was terminated and that all rights therein described were disclaimed by the defendant within an hour of its execution, upon reading and consideration of the will. Plaintiff took possession of the Turner County property pursuant to the will, but because of the recorded agreement, his ability to convey title is impaired. The petition prayed, in addition to other relief, that the agreement be canceled so as to remove a cloud upon plaintiff's title to the Turner County property.
The defendant, in his answer and cross bill, made these essential allegations. He admitted that the plaintiff has the legal title to the Turner County property and is in possession of it, but denied that the plaintiff is entitled to more than a one-half interest in it. He admitted execution of the agreement, but denied all allegations as to fraud. He alleged that, in order to terminate family controversy, he and the plaintiff entered into the agreement following the death of their mother, but before her will was opened and read and without either of them having prior knowledge of its contents. Subsequent to the execution of the agreement, the will was opened and read, and it was then learned by the parties for the first time that plaintiff was devised the fee simple title to the Turner County property and the defendant was devised a life interest only in the Upson County property. Thereafter, the will was probated, executor's deeds were delivered to each covering the respective devises, and the estate was fully administered. In early 1966 plaintiff and defendant agreed by telephone that for the time being, and as a matter of convenience, plaintiff would attend to the renting of the Turner County property and defendant the Upson County property and that they would later account to each other for their respective shares of the rental income. It was not until some time later that the defendant received notice that the plaintiff did not intend to honor their agreement. Ever since it was made, the defendant has stood ready, willing and able to exchange conveyances so as to equally divide these properties, but the plaintiff has refused. The value of the Turner County property is $50,000 and a one-half undivided interest is worth $25,000. The prayers were that the plaintiff specifically perform the agreement by exchange of conveyances or, if title cannot be conveyed to the Turner County property, that he have a money judgment for $25,000; that the plaintiff be required to account to defendant for his one-half share of rents and profits received or to be received from the Turner County property; and that plaintiff be restrained from collecting the farm rental and selling the pecan crop for the current year, from leasing or renting the property for any coming year, and from interfering with defendant's possession and enjoyment of the Turner County property.
In an affidavit the plaintiff swore 'that his brother * * * knew of the disposition made by (their mother) of her property by her * * * will * * * and that this fact gave (his brother) an undue advantage at the time of the purported agreement * * *.'
The plaintiff's deposition, as it relates to the issues here, was in substance as follows: that the agreement was the defendant's idea; that it was executed before the will was opened and read; that his reason for believing, then and now, that the defendant 'knew what was going on' is that 'he wants me to concede half of this down here is his and he can do as he pleases with it, but, when he dies, I can't touch nothing up yonder, so it's a one sided affair * * * he can't give me half of that property up yonder'; that the defendant's only misrepresentations to induce execution of the agreement were his statement that the Upson County property was worth more than the Turner County property and that 'if we would share and share alike that I would get a better deal,' and also the fact that the plaintiff received only one copy of the agreement whereas the defendant got two; that he was not prevented from learning the values of the properties and made no effort to find out; and that his allegation as to termination of the agreement was based not upon anything the defendant said, but upon a statement made by the attorney for the estate, who represented both of them, that the defendant could not...
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