Park v. Minton
| Decision Date | 09 November 1972 |
| Docket Number | Nos. 27446,27447,s. 27446 |
| Parties | Hettie A. PARK et al. v. Eunice C. MINTON et al. (two cases). |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. The motions to dismiss are denied.
2. An oral contract to make a will devising land, for a valuable consideration, which contract has been performed by the promisee, will be enforced by specific performance, if its terms are fair and equitable; and if specific performance is impossible, damages will be awarded for its breach.
3. Where there is failure of performance of a contract to make a will devising specific property, and after the promisor's death this property is set aside to his widow and minor children as a year's support, specific performance of the contract becomes impossible, and the only remedy is damages for the breach of the contract.
4. The attempted amendment of the judgment of dismissal, entered after notice of appeal was filed from the judgment, was a nullity.
Twitty & Twitty, Frank S. Twitty, Jr., Camilla, for appellants.
Frank C. Vann, Camilla, for appellees.
Mrs. Hettie A. Park, Mrs. Inez A. Reeves, and Mrs. Johnnie A. Mewborne brought a complaint against Mrs. Eunice C. Minton, individually and as administratrix of the estate of J. O Minton, and the three minor children of J. O. Minton. The complaint alleged that: J. O. Minton died intestate on September 1, 1971, leaving his widow, Eunice C. Minton, and three named minor children as his heirs. At the time of his death J. O. Minton was the owner of described real property. This property was set aside to Mrs. Minton and the three minor children as a year's support, subject to certain security deeds. J. O. Minton was formerly married to the sister of the plaintiffs and inherited the described property from her on her death in 1953. For several years prior to the death of the plaintiffs' sister J. O. Minton had been farming her land and that of the plaintiffs which adjoined it, and he desired to continue farming all of the land together. On January 14, 1953, the plaintiffs and J. O. Minton entered into a agreement wherein the plaintiffs agreed for J. O. Minton to farm their land rent free for the remainder of his life, paying only the ad valorem taxes as they became due, in consideration of which J. P. Minton agreed to devise the property he inherited from their sister to the plaintiffs, their sister and brother. Pursuant to the agreement, J. O. Minton farmed the land owned by the plaintiffs for the remainder of his life without paying rent. A few years after the contract was made, J. O. Minton married Eunice C. Minton. She was fully advised of the agreement. The value of the described property at the time of the agreement was approximately $24,000. The reasonable value of the rental of the plaintiffs' property during the life expectancy of J. O. Minton would exceed the value of the property, and the agreement was fair and equitable. The plaintiffs have fully performed their obligations under the agreement and are entitled to have specific performance. The plaintiffs demanded specific performance, or damages in lieu thereof, and injunctive relief.
The defendants filed motions to dismiss on the grounds that the complaint fails to state a claim upon which relief could be granted; the complaint seeks to set aside a valid judgment of a court of competent jurisdiction and fails to set forth any grounds upon which it could be set aside; and as to the defendants individually, the complaint seeks to recover damages for an alleged breach of contract between J. O. Minton and the plaintiffs on which the defendants are not personally liable.
On June 8, 1972, the trial judge entered a judgment sustaining the motions to dismiss and dismissing the complaint as to all defendants. This order recited that the parties had agreed that if any contract existed, it was oral, and that the year's support proceedings were valid.
Notice of appeal from this judgment was filed by the plaintiffs on July 6, 1972 (Case No. 27446).
On July 11, 1972, the trial judge entered an amended order, adhering to his ruling that the complaint showed no reason why the year's support judgment should be set aside, and that the judgment is superior to any claim asserted in the complaint, but stating that he could not determine as a matter of law from the pleadings whether the plaintiffs have a claim against the estate of J. O. Minton, and therefore against the administratrix in her representative capacity, and this question is left for future determination.
Notice of appeal was filed from this order (Case No. 27447).
1. The appellees have filed motions to dismiss the appeals in both cases, asserting that the appellants have failed to include a statement as to why the Supreme Court has jurisdiction of the appeal in their enumerations of error, and have failed to include a copy of the enumerations in their brief. The appellants have filed amendments to their enumerations of error and briefs supplying the information.
The rules of this court which the appellants have failed to comply with are directory only, and not jurisdictional. Compare Norton Realty & Loan Co., Inc. v. City of Gainesville, 224 Ga. 166, 169, 160 S.E.2d 819. The motions to dismiss are denied.
2. We consider first the appeal (Case No. 27446) from the judgment dismissing the complaint.
An oral contract to make a will devising land, for a valuable consideration, which contract has been performed by the promisee, will be enforced by specific performance, if its terms are fair and equitable; and if specific performance is impossible, damages will be awarded for its breach. Banks v. Howard, 117 Ga. 94(1), 43 S.E. 438; Gordon v. Spellman, 145...
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Shimp v. Huff
...to be accorded priority over the claims of both ordinary contract creditors and legatees under a will. 10 See, e.g., Park v. Minton, 229 Ga. 765, 194 S.E.2d 465, 467 (1972) (holding that a statute, providing for a year's support for the surviving spouse, indicated that the support obligatio......
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Piedmont Hosp., Inc. v. D.M.
...interlocutory orders. In any event, the rules of the appellate courts "are directory only, and not jurisdictional." Park v. Minton, 229 Ga. 765, 768(1), 194 S.E.2d 465 (1972). Accordingly, we find no error by the trial court and conclude that the applications were timely filed and properly ......
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...or modify the judgment, whether pursuant to statutory or inherent power, are without effect. Code Ann. § 6-1002(a); Park v. Minton, 229 Ga. 765(3), 769, 194 S.E.2d 465 (1972) and cits.; Roper v. Motors Ins. Corp., 139 Ga.App. 788, 229 S.E.2d 481 (1976); Philips Broadcast Equipment Corp. v. ......
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