Smith v. Cox

• Decision Date: 06 May 1981
• Docket Number: No. 37181,37181
• Citation: 277 S.E.2d 512,247 Ga. 563
• Parties: SMITH et al. v. COX.
• Court: Georgia Supreme Court

Page 512

277 S.E.2d 512

247 Ga. 563

SMITH et al. v. COX.

No. 37181.

Supreme Court of Georgia.

May 6, 1981.

G. M. Adcock, Adcock & Willard, Rossville, for Harvey J. smith et al.

Burton Brown, Brown, Harriss & Hartman, Rossville, for J. Hassel Cox.

SMITH, Justice.

Appellee brought an action for a writ of possession. Appellants counterclaimed, alleging that the parties have entered into a "lease-purchase" agreement resting partly in writing and partly in parol. The trial court, ruling that the alleged agreement was unenforceable on account of the statute of frauds, refused to allow oral testimony as to the terms of the alleged contract and directed a verdict in favor of appellee. We reverse.

On February 7, 1962, the parties entered into the following agreement, entitled "Lease": "Harvey J. Smith and wife Reba, has leased house on Rathburn Circle for 2 years at the rate of $70 per month, to be paid in advance. Due date the 7th of each month. Rent is to be applied on down payment less interest on money and taxes and insurance. Any time the rent becomes 10 days past due this contract is void and null." The agreement is written on paper bearing the letterhead "Cox Coal & Supply Co." Appellee Cox admits having extensive experience in real estate transactions. Appellants, a couple of limited means, have almost none. The written agreement bears the signature of a witness.

There is no doubt that the alleged agreement fails to satisfy the requirements of the statute of frauds relating to contracts for the sale of real estate. See Wiley v. Tom Howell & Associates, Inc., 154 Ga.App. 235, 267 S.E.2d 816 (1980); Code Ann. § 20-401(4). "The statute requires that every essential element of the sale must be expressed in the writing." Pindar, Ga. Real Estate Law 575, § 18-8. "A contract for the sale of land, which is partly in writing and partly in parol, is not enforceable, by reason of the statute of frauds." Thompson v. Colonial Trust Co., 35 Ga.App. 12(1), 131 S.E. 923 (1926).

Appellants contend, however, that the barrier of the statute of frauds has been removed by part performance of the alleged agreement and that the trial court erred in refusing to admit parol evidence of the agreement's terms. At trial, appellants offered testimony that the $70 monthly payments were to be applied to the purchase price of the property. It is undisputed that appellants moved into the residence located on the property and lived there a number of years. The residence needed extensive repair work. However, appellants were financially unable to make the necessary repairs and they moved elsewhere, using the residence as a storage facility. Nonetheless, they continued making the $70 monthly payments to appellee until he filed this action, a period of approximately nine years. Appellee continued to accept the payments even after he became aware that the house was being used for storage purposes rather than as a residence.

"While Code, § 20-401(4) provides that any contract for the sale of lands, or any interest in or concerning them, to be binding upon the promisor, must be in writing, signed by the party to be charged therewith, or some person by him lawfully authorized, this section does not apply where there has been such part performance of the contract as would render it a fraud of the party refusing to comply, if the court did not compel a performance. Code, § 20-402(3); Baxley Hardware Co. v. Morris, 165 Ga. 359(2), 140 S.E. 869. While payment of a part of the purchase-money is not alone such part performance as will take the case out of the statute of frauds, partial payment of the purchase-money accompanied with possession will amount to such part performance as to take the contract out of the statute (Wimberly v. Bryan, 55 Ga. 198); Corbin v. Durden, 126 Ga. 429, 55 S.E. 30, and to authorize the specific performance of a parol contract. Code, § 37-802." Harris v. Underwood, 208 Ga. 247, 249, 66 S.E.2d 332 (1951); Sellers v. Hall, 153 Ga.App. 189, 265 S.E.2d 81 (1980).

Appellee, citing Grist v. Foster, 246 Ga. 565, 273 S.E.2d 403 (1980), argues that, as a matter of law, appellants have failed to demonstrate such part performance as would remove the alleged agreement from the statute of frauds. We believe, however, that Grist is distinguishable from the case at bar.

In Grist, supra at 566, we held: "When a party seeking...