Parr v. Parr, 20341

• Citation: 231 S.E.2d 695,268 S.C. 58
• Decision Date: 06 January 1977
• Docket Number: No. 20341,20341
• Court: United States State Supreme Court of South Carolina
• Parties: C. B. PARR and Mary Nance Parr, Appellants-Respondents, v. Henry L. PARR, II, Respondent-Appellant.

Page 695

231 S.E.2d 695

268 S.C. 58

C. B. PARR and Mary Nance Parr, Appellants-Respondents, v. Henry L. PARR, II, Respondent-Appellant.

No. 20341.

Supreme Court of South Carolina.

Jan. 6, 1977.

Blease, Griffith & Stone, and Pope & Schumpert, Newberry, for appellants-respondents.

Boyd, Knowlton, Tate & Finlay, and Kermit S. King, Columbia, for respondent-appellant.

RHODES, Justice.

This action was commenced by the plaintiffs, C. B. Parr and Mary Nance Parr, on June 20, 1975. Henry L. Parr, the defendant, is the son of the plaintiffs. The plaintiffs sought specific performance of an alleged oral contract between C. B. Parr and Henry L. Parr made during the spring of 1958. The plaintiffs alleged performance on their part of the terms of the contract. They also alleged the failure and refusal of the defendant to reconvey, by fee simple deed, as the contract purportedly required him to do, a tract of 7.14 acres of land on which is located the home in which the plaintiffs reside. This tract is more particularly described on a plat made by Claude E. Johnson, Licensed Surveyor, on May 6, 1958, attached to and made a part of the Complaint.

The case was tried without a jury on February 4, 1976, at Newberry. By Decree dated April 1, 1976, the trial judge ruled that the plaintiffs were entitled to receive a properly executed deed vesting in them a life estate in the 7.14 acres. The plaintiffs and the defendant have appealed from this Decree. We reverse the Decree and hold that the plaintiff, C. B. Parr, is entitled to receive a deed vesting in him a fee simple title to the 7.14 acre tract.

In an action in equity (as in this case) tried by the judge alone, without a reference, on appeal this Court has jurisdiction to find facts in accordance with its views of the preponderance of the evidence. Townes Associates, Ltd. v. The City of Greenville, 266 S.C. 81, 221 S.E.2d 773 (1976). In accordance with this rule, we hold that a preponderance of the evidence supports a finding of the following facts:

C. B. Parr and Henry L. Parr entered into an oral contract in 1958, under which C. B. Parr agreed to convey the bulk of his real property to Henry L. Parr. In return for this conveyance, Henry L. Parr agreed to procure the maximum possible loan on the property from the Federal Land Bank and pay the proceeds of the loan to his father. Henry L. Parr expressed his assent and complied with that part of the agreement calling for payment of the loan proceeds to his father. Prior to Henry's acquiring the loan, C. B. Parr transferred to his son by fee simple deed, dated April 21, 1958, approximately 469 acres of land in Newberry County. The oral contract provided that Henry was to retain fee simple title to all of the transferred land except a 7.14 acre tract on which is located the homeplace of the plaintiffs. Under the terms of the parol agreement, this tract was to be conveyed in fee simple back to the father, or to the father's designee, as soon as the loan was acquired. In furtherance of the oral agreement, Henry assisted the licensed surveyor referred to hereinabove with regard to the boundaries which should be used in preparing the plat of the 7.14 acres. This plat was completed approximately two weeks after the conveyance from C. B. Parr to Henry L. Parr. The plaintiffs have lived on the 7.14 acre tract at all times subsequent to the 1958 agreement. The defendant has made use of only a small portion of this tract, specifically, a feed barn located thereon.

C. B. Parr prepared a deed, dated July 21, 1958, in an effort to effectuate the contemplated reconveyance. This deed was transmitted to Henry L. Parr for the latter's signature and delivery. Henry, however, altered the deed so as to effect a conveyance of a mere life estate. He signed the deed and it was delivered to his father, although neither the precise time nor manner of delivery is clear under the evidence. C. B. Parr did not examine this deed to ensure that it complied with the parol agreement. Instead, he placed it in his safe where it remained until immediately prior to the institution of this action in 1975. No attempt to record this deed was ever made. Legal title to the land remains in Henry L. Parr under the recorded deed of April 21, 1958. Henry has, at all times subsequent to the conveyance of April 21, 1958, failed and refused to reconvey a fee simple title to the 7.14 acres.

The defendant contends first that testimony concerning the oral agreement between himself and his father is barred by the parol evidence rule. This contention is without merit. The applicable rule of evidence is the following:

'When the written evidence of the contract does not contain all the terms of the transaction between the parties, parol evidence (not contradicting or varying the writing) is admissible for the purpose of showing a contemporaneous independent agreement entered into between the parties.' City of Greenville v. Washington American League Baseball Club, 205 S.C. 495, 507, 32 S.E.2d 777, 781 (1945), quoting Ashe v. Carolina & N.W. Ry. Co., 65 S.C. 134, 43 S.E. 393, 394 (1903).

Under this rule, it was permissible for the plaintiffs to testify as to what was meant by the words, 'in consideration of the sum of Ten Dollars and other valuable consideration', contained in the deed of April 21, 1958. The testimony offered was to the effect that 'other valuable consideration' included the reconveyance of the 7.14 acre tract by Henry L. Parr. There was no attempt here to vary or contradict the terms of the deed. This testimony was simply explanatory of what the parties meant by the words, 'and other valuable consideration'. It was not error to admit this evidence. See Alexander v. McDaniel, 56 S.C. 252, 34 S.E. 405 (1899).

The defendant next argues that the trial judge erred in finding an oral agreement, because the evidence regarding it was not 'clear, definite, certain, precise and free from obscurity'. Our statement in Gilbert v. Mid-South Machinery Co., Inc., S.C., 227 S.E.2d 189, 194 (1976), suggests the rule with respect to the necessary burden to prove the oral contract. There, in dealing with an action for fraud and deceit, we stated the following:

'Defendants argue that the use of the phrase 'preponderance of the evidence' in the charge relative to the weight of the evidence is inconsistent with the further charge that the evidence must be clear, cogent, and covincing. . . . (W)e think the following statement reflects the applicable law:

'. . . while the evidence must be clear and convincing, such clear and convincing proof may be met by a preponderance of the evidence." (citation omitted)

We are not concerned primarily with the Quantity of the evidence offered to establish the oral contract, although it should be noted that the plaintiffs presented ample testimony with respect to the existence of the parol agreement. Rather, we are concerned more with the Quality of the evidence. Such evidence must convincingly prove the existence of the contract. We conclude, as did the trial judge, that the plaintiffs proved the parol agreement by evidence which is clear, specific, definite, and convincing in nature, as is their burden. Cloniger v. Cloniger, 261 S.C. 603, 193 S.E.2d 647 (1973).

The defendant also contends that the trial judge committed error in finding acts of sufficient part performance to...