Jones v. Robinson

• Decision Date: 16 May 1931
• Docket Number: 8072.
• Citation: 158 S.E. 752,172 Ga. 746
• Parties: JONES et al. v. ROBINSON et al.
• Court: Georgia Supreme Court

158 S.E. 752

172 Ga. 746

JONES et al. v. ROBINSON et al.

No. 8072.

Supreme Court of Georgia

May 16, 1931

Syllabus by the Court.

Pleadings are to be construed most strongly against pleader; petition held to seek specific performance of agreement to make gift of land and was insufficient in absence of conveyance in writing; agreement to give land to another did not lose its character as gift because intended to terminate family differences (Civ. Code 1910, § § 4144, 4146).

Pleadings are to be construed most strongly against the pleader.

(a) So construing the petition in this case, the agreement between Mrs. Robinson and Mrs. Jones, which the plaintiffs seek to have specifically performed, evidences a gift of the land involved by Mrs. Robinson to Mrs. Jones for the plaintiffs.

(b) Besides, the petition expressly alleges that Mrs. Robinson gave this land to Mrs. Jones for the plaintiffs.

(c) As the petition expressly alleges that under the agreement between Mrs. Robinson and Mrs. Jones the former gave this land to the latter for the plaintiffs, the transaction does not lose its character as a gift by reason of the fact that one of the ends which Mrs. Robinson intended to accomplish was the termination of differences between the members of her family.

(d) To make a valid gift of land there must be generally a conveyance in writing. The facts of this case do not take it out of this general rule.

Agreement to give, to sister, land acquired by deed and devise from father did not become agreement of father because ascented to by him; daughter has no such interest in father's land during father's lifetime as she could surrender for relinquishment by sister of title to land obtained from father on theory that conveyance or relinquishment was compromise of doubtful right; to furnish sufficient consideration for settlement of family differences, right of party asserting settlement must not be wholly without foundation; to enforce agreement to settle family differences, there must be some right relinquished by party seeking to enforce settlement; daughter had mere expectancy in father's property during father's lifetime insufficient to sustain agreement by sister to relinquish title to land acquired by deed from father (Civ. Code 1910, § 4636).

The agreement which the plaintiffs seek to have specifically performed was one between Mrs. Robinson and Mrs. Jones, and was not one between the former and her father. The fact that the father assented to this agreement did not make it his agreement.

(a) A daughter has no such title to or interest in the land of her father, during the lifetime of the father, as she can relinquish or surrender to her sister as a consideration for the relinquishment by the latter of her title to land which she had previously obtained from their father, upon the theory that such conveyance or relinquishment was a compromise of a doubtful right of the daughter in whose favor such relinquishment or surrender was made.

(b) While an agreement to settle family differences will not be considered voluntary and without consideration, but will be enforced in equity as a fair family arrangement independently of its being a compromise of doubtful rights and while to render such agreements valid it is not essential that the matter should be in real doubt, but it is sufficient if the parties consider it so far doubtful as to make it the subject of compromise, if the party setting up the agreement of settlement believed in the claim or contention which she asserted, or made such claim or contention in good faith yet, to furnish a sufficient consideration for such settlement, the right of the party asserting such settlement must not be wholly without foundation. There must be some right or show of right relinquished by the party seeking to enforce the agreement of settlement; and if no right whatever exists, there can be no such consideration as will support the settlement.

(c) A daughter of a father who is in life has a mere expectancy in his property as his heir at law; and she has no such interest in his estate as will sustain an agreement by which her sister relinquishes to her for her children title to land which she had acquired by deed from their father.

Petition setting forth no cause of action cannot be amended; new and different case from that made in original petition cannot be added by amendment; parol gift from daughter to father for grandchildren created in father express trust for grandchildren of land which could not be proved by parol general allegations of fraud, deceit, and undue influence, are insufficient to raise any issue, but require statement of facts on which they are based; if fraud is relied on to vitiate transaction, particular facts constituting fraud must be alleged (Civ. Code 1910, § § 3733, 5681).

There must be enough in a petition to amend by; and where it sets forth no cause of action it cannot be amended.

(a) A new and different case from that made in the original petition cannot be added by amendment; and the court did not err in rejecting such amendment and dismissing the same upon demurrer.

(b) The parol gift from Mrs. Robinson to her father for the plaintiffs of the land involved in this case creates in the father an express trust for the plaintiffs; and the same cannot be proved by parol.

(c) General allegations of fraud, deceit, and undue influence are insufficient to raise any issue; and they are never sufficiently pleaded except by a statement of the facts upon which they are based. If fraud is relied on to vitiate a transaction, the particular facts constituting the fraud must be alleged.

The trial judge did not err in dismissing the petition in this case on demurrer.

Error from Superior Court, De Kalb County; John B. Hutcheson, Judge.

Action by A. P. Jones and others against M. Y. Robinson and others. Judgment for defendants, and plaintiffs bring error.

Affirmed.

William Attaway and H. B. Moss, both of Marietta, and Scott Candler, of Atlanta, for plaintiffs in error.

E. Harold Sheats, of Atlanta, and Carl T. Hudgins, of Decatur, for defendants in error.

HINES J.

A. P., C. A., and Walter Jones filed their petition against M. Y. Robinson, individually and as administrator of the estate of Sarah Elizabeth Robinson, for specific performance of an oral contract relating to land. They make this case in their original petition: Robinson is the sole heir at law of his deceased wife, Sarah Elizabeth Robinson. Alice Jane Jones, the mother of the plaintiffs, and Mrs. Robinson were sisters; both being children of Samuel W. Power, deceased. On May 6, 1909, Samuel W. Power, under the influence of his son-in-law, Robinson, and of his son, James W. Power, was induced to make a will. At that time Samuel W. Power was of advanced age and easily influenced. By the first item of his will he devised to his daughter Fannie S. Rosser a described tract of land, containing 40 acres, more or less, including the dwelling where testator then resided, together with his household furniture and the live stock on said place. By the second item he devised to his daughter Sarah E. Robinson the tract of land containing 70 acres, more or less, which is the subject-matter of this suit. By the third item he devised to his daughter-in-law Samantha M. Power, and her children, a tract of land containing 97 acres, more or less, and a tract of land containing about 6 acres. By the fourth item he devised to his son James W. Power a tract of land containing 76 acres, more or less. By the fifth item he devised to John H., H. A., Lillie May, Nellie, and Mary Lou Sentell, and Alice Deaton a tract of land containing 20 acres, more or less. By the sixth item he devised to his daughter Alice Jane Jones a tract of land containing 20 acres, more or less. By the seventh item he directed that his house and lot at East Point be sold by his executor and the proceeds divided between his children and representatives of children, each child to have one share and the representatives of a deceased child one share. He directed a like distribution of any money that he might have on hand at the time of his death, after paying his funeral expenses. He nominated his son James W. Power as executor of his will. On May 8, 1909, the testator added a codicil to his will, by which he devised to the Sentells and Alice I. Deaton, share and share alike, 10 acres of land.

Robinson and James W. Power knew the contents of this will. Mrs. Jones did not know its contents. When Mrs. Jones learned of the will and its contents, she asked her father to make a change in the will, for the reason that she knew that he would not intentionally discriminate against her. When James W. Power and Robinson learned that Mrs. Jones was about to speak to her father with the purpose of trying to get him to make the shares in his estate more nearly equal, they procured him to execute deeds to James W. Power, Mrs. Robinson, and Mrs Jones to the respective tracts of land which he had willed to them, so that he could not change the disposition of his property. The consideration of the deed to Mrs. Robinson is $1 and natural love and affection. The maker reserves to himself a life estate in the land thereby conveyed. When Mrs. Jones learned of this "trick" on the part of her brother James W. Power, and her brother-in-law Robinson, she expressed to her father her displeasure at his action. When he realized what he had been induced to do, he desired to undo what he had done. He offered to allow the use of his name in an action to set aside and annul the said deeds to Mrs. Robinson and to James W. Power. Mrs. Robinson had no hand in procuring said deed to her. She was devoted to her sister, was likewise fond of the plaintiffs, and did not wish...