Sellers v. Hall, 58700

• Decision Date: 28 January 1980
• Docket Number: No. 58700,58700
• Citation: 153 Ga.App. 189,265 S.E.2d 81
• Parties: SELLERS v. HALL.
• Court: Georgia Court of Appeals

Page 81

265 S.E.2d 81

153 Ga.App. 189

SELLERS v. HALL.

No. 58700.

Court of Appeals of Georgia.

Submitted Oct. 18, 1979.

Decided Jan. 28, 1980.

James A. Elkins, Jr., Columbus, for appellant.

Douglas L. Breault, Columbus, for appellee.

SMITH, Judge.

Appellant brought this action to obtain payment under an alleged oral contract for the sale of real estate. The trial court granted appellee's motion for summary judgment. We affirm.

Code § 20-401 provides: "To make the following obligations binding on the promisor, the promise must be in writing, signed by the party to be charged therewith, or some person by him lawfully authorized: . . . 4. Any contract for sale of lands, or any interest in, or concerning them." Appellant asserts that Code § 20-401(4) does not defeat his right to payment under the alleged contract because appellee "performed part of the agreement by making a payment to the W. T. Grant Company on a bill which I owed." See Code § 20-402. We disagree. "The receipt of a part of the purchase-money is not such part performance as will take the case out of the statute. It is only in cases where partial payment of the purchase-money is accompanied with possession that it will amount to part performance so as to take the contract out of the statute." Corbin v. Durden, 126 Ga. 429, 431, 55 S.E. 30, 31 (1906). There being no allegation or proof that appellee took possession of the property, the trial court's grant of appellee's motion for summary judgment must be upheld.

Judgment affirmed.

QUILLIAN, P. J., and BIRDSONG, J., concur.