Harp v. Bacon
| Decision Date | 08 September 1966 |
| Docket Number | No. 23547,23547 |
| Citation | 222 Ga. 478,150 S.E.2d 655 |
| Parties | Cleveland HARP, Executor, et al. v. Thad E. BACON. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. The allegations of the petition stated a cause of action for specific performance of an oral agreement of the defendant to make a will leaving certain real and other property to plaintiff in return for his moving on to the land and operating the farm and handling her other business until she died, and for cancellation of a gratuitous deed made by her, and for other equitable relief.
2. The evidence was not sufficient to prove beyond a reasonable doubt, which is required in an action for specific performance of an oral contract to devise land, that the defendant promised the plaintiff that if he would move to Worth County and take charge of her farm and operate it as long as she lived, she would make a will devising the property to him immediately upon his coming to Worth County.
3. It was not error to admit the testimony of Joe Bacon as to value of the services performed by plaintiff from the time he went into possession of the farm, as his background and knowledge qualified him to testify as to their value.
4. The decree giving plaintiff the south half of the lot of land follows the verdict, and is sufficiently definite to be enforceable.
5. It was not error for the court not to charge that specific performance of a contract for the conveyance of personal property will not as a general rule be enforced, where, as here, appellant made no objection at the trial to the failure to so charge and made no request for the court to give the charge; and, further, a contract for conveyance of both realty and personalty is enforceable in equity where good reason and good conscience require a decree for specific performance.
6. It was error to admit the testimony of an attorney as to contents of a will drawn by him for the defendant in 1958 four years following her alleged offer to make a will devising her property to plaintiff in 1954, as it was not relevant to the purported agreement.
Whelchel & Whelchel, Hoyt H. Whelchel, Moultrie, for appellants.
Twitty & Twitty, Frank S. Twitty, Camilla, for appellee.
Thad E. Bacon filed a petition in four counts in the Superior Court of Colquitt County seeking specific performance of an oral contract for the devise of the interest owned by his aunt, Eudora M. Bacon, in a farm and for machinery and equipment accumulated by the parties in the operation of the farm on a partnership basis, for the cancellation of a deed made by the promisor in the contract, Eudora M. Bacon, and for other equitable and legal relief. Demurrers to the petition were overruled and, at the trial of the case, the jury returned a verdict in favor of the plaintiff, and the court entered a judgment ordering Cleveland Harp, executor of the estate of Eudora M. Bacon, to execute and deliver a deed conveying the farm property to plaintiff and cancelling the deed purporting to convey Eudora M. Bacon's interest in the farm property to her sister, Eloise Bacon. Defendants filed a motion for new trial on the general grounds and on two special grounds. On March 21, 1966, the lower court overruled the motion for new trial on all grounds.
Defendants appeal from the order overruling their motion for new trial and the verdict and judgment in favor of plaintiffs and enumerate as error the order overruling the demurrers to the petition, the order continuing a temporary restraining order against them, the order overruling their motion for new trial, the court's allowing witness Joe Bacon to testify as to the value of services performed by plaintiff, his brother, and in allowing witness Martin Bivins to testify as to the contents of a prior will drawn for Eudora Bacon by him, and the charge of the court for failing to instruct the jury that specific performance of a contract for the conveyance of personal property will not be enforced as a general rule.
1. We first consider the ruling on the demurrers. The material allegations of the petition are (1) Petitioner's aunt, Eudora M. Bacon, approached him in November, 1953, with the proposition that if he would come to Worth County and take over the operation of her farm there and handle her general business affairs until she died, she would furnish the money for the purchase of necessary equipment and they would operate the farm on a partnership basis, 'and that as soon as the plaintiff came to Worth County she would immediately make a will which would provide that whatever had been accumulated through the operation of the farm, plus her 245 acres (above described) would be left to your plaintiff'; (2) in February, 1954, plaintiff accepted the proposal and severed all his business ties and interests in Bibb County and moved to Worth County and took over the operation of the farm and Eudora Bacon's business affairs; (3) plaintiff performed all of the conditions of the contract in that he operated the farm in accordance with good farming practice, made repairs on the buildings and fences on the farm, bought equipment, gathered crops, raised and sold livestock, and performed other services for his aunt; (4) the value of these services is at least $20,000; (5) the present value of the farm property is at least $25,000; (6) on October 15, 1960 Eudora Bacon executed a gratuitous deed to her sister, Eloise Bacon, conveying not only her interest in the farm but also other properties owned by her so that, as a result of this deed, she became insolvent and it was impossible for her to perform her part of the contract, or to respond in damages for the breach thereof; (7) that although Eudora M Bacon is still in life, said deed constitutes a cloud on the title to the property which is to vest in plaintiff upon the death of Eudora Bacon; (8) that Eudora Bacon has breached the contract by informing plaintiff that he was not to occupy the premises any longer, by taking out distress warrants against plaintiff and claiming he owes rent for the years 1960 and 1960; and (9) that Eudora Bacon has failed to make the will as promised.
The prayers were for the cancellation of the deed to Eloise Bacon, enforcement of the oral contract to make a will leaving Eudora Bacon's interest in the property to plaintiff, for the execution of all instruments necessary to the granting of such relief, and for damages and other relief.
Appellants contend that the demurrers to the petition should have been sustained because the petition for specific performance of an oral contract to make a will was prematurely brought as the promisor, Eudora Bacon, was still living when the petition was filed (although she has since died) and therefore plaintiff cannot show that he has substantially performed his part of the contract, nor that Eudora Bacon has failed to perform her promise to devise the property to him. Appellants rely primarily upon the ruling in Zachos v. Zachos, 214 Ga. 629, 106 S.E.2d 775 that no cause of action for specific performance of an oral contract to make a will devising property in return for services rendered arises until the death of the promisor. In the Zachos case it did not appear that the promisor agreed to make the will at any given date or at any specific time, and we held that the lower court properly dismissed the promisor as a party to the suit as there could be no cause of action against her while she was still living. In the instant case plaintiff does allege that Eudora Bacon promised to make the will at a certain time, that is, 'as soon as plaintiff came to Worth County she would immediately make a will,' etc. Thus, the petition alleges performance by plaintiff in that he severed all his business interests in Bibb County, left his home there and came to Worth County for the purpose of operating the farm and caring for the general business interests of his aunt. It shows that the time for performance by plaintiff's aunt was upon his coming to Worth County and not at her death. The rule in the Zachos case is not applicable here as that case is clearly distinguishable on its facts from this one.
Furthermore, the petition sets forth a valid cause of action for the removal of a cloud upon the title to Eudora Bacon's interest in the farm property in showing that Eudora Bacon deeded that property along with other property to her sister which, it is alleged, was not supported by consideration and which was obtained through Eudora's sister's influence upon her turning her against petitioner. Plaintiff, who has been in possession of the property since 1954, alleges that distress warrants for rent have been taken against him by his aunt and shows by this that he is being injured by the fact of the deed as a cloud upon the title of property promised to be devised to him and to which, under the terms of the contract, he has the right to possession. It is shown that plaintiff's interest in the property under the contract is put in jeopardy by the deed. Code §§ 37-1407, 37-1408, 37-1410; Thompson v. The Etowah Iron Co., 91 Ga. 538(1), 17 S.E. 663; Moody v. McHan, 184 Ga. 740, 193 S.E. 240.
Appellants contend that the contract, being an oral contract for the conveyance of an interest in land, is within the statute of frauds and is therefore not enforceable because plaintiff has not fully performed his part of the agreement. It is now well settled that oral contracts for the devise of property in consideration for services rendered to the promisor may be specifically enforced. Zachos v. Citizens & Southern Nat. Bank, 213 Ga. 619, 100 S.E.2d 418; Banks v. Howard, 117 Ga. 94, 43 S.E. 438; Cagle v. Justus, 196 Ga. 826 831, 28 S.E.2d 255; Gordon v. Spellman, 145 Ga. 682, 89 S.E. 749. Furthermore, the plaintiff need only show substantial compliance with his part of the agreement in order to obtain specific performance of the contract. Ray v. Sears, 220 Ga. 521, 526, ...
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