Walls v. Savage

• Decision Date: 27 February 1979
• Docket Number: No. 34237,34237
• Parties: WALLS et al. v. SAVAGE et al.
• Court: Georgia Supreme Court

Page 183

253 S.E.2d 183

243 Ga. 198

WALLS et al. v. SAVAGE et al.

No. 34237.

Supreme Court of Georgia.

Argued Nov. 15, 1978.

Decided Feb. 15, 1979.

Rehearing Denied Feb. 27, 1979.

Robinson, Harben, Armstrong & Millikan, Edmund A. Waller, Thompson, Fox & Brinson, David A. Fox, Gainesville, for appellants.

Telford, Stewart & Stephens, J. Douglas Stewart, William H. Blalock, Jr., Smith, Smith & Frost, J. Randall Frost, Gainesville, for appellees.

BOWLES, Justice.

Appellants, plaintiffs below, filed an equitable action in Hall Superior Court to partition a tract of land containing approximately 121 acres which was owned by J. R. Savage, Sr. at the time of his death in 1957. He left this property by will to his wife for her lifetime with remainder over to his children and a niece. Appellants are the children, the heirs of a since deceased child and the niece. Appellees, defendants below are children and heirs of a deceased child.

J. R. Savage, Jr., a defendant child filed a counterclaim and cross-claim alleging the existence of an oral contract between the children, the niece named in the will and himself. He sought specific performance of that contract which provided that the real estate in question would be conveyed to him if he would remain at the homeplace and care for and support his mother, the wife of J. R. Savage, Sr., during her lifetime. He claimed full performance of the obligations incurred.

The case was submitted to an auditor by the court, who after hearing found among other things that the parties were the named remaindermen in the will of J. R. Savage, Sr., or heirs of deceased remaindermen. He also found that all of the parties agreed that if J. R. Savage, Jr. would continue to live on the homeplace and take care of his mother, the homeplace would belong to him after his mother's death. He also found that during the next 18 years of the mother's lifetime, J. R. Savage, Jr. lived on the place, took care of his mother, paid most of the household expenses, made improvements to the land and maintained the property. He found that the agreement was clear, distinct and definite and was made out clearly, strongly and satisfactorily, leaving no reasonable doubt as to the agreement. He concluded that J. R. Savage, Jr. has executed his obligations under the contract, is the owner of the property in question and is entitled to legal title to the same.

Exceptions were filed to the report, together with a motion to recommit; a motion to remove the case from the auditor; a demand for a jury trial of the issues; and related relief. Appellants filed a motion for summary judgment in their behalf. The trial court denied plaintiffs' motion for summary judgment, overruled plaintiffs' exceptions to the auditor's report, and denied their motion to remove the case from the auditor. Thereupon, final judgment was entered by the court approving the report, making the same the judgment of the court and decreeing that specific performance be granted to defendant J. R. Savage, Jr., on his counterclaim and cross claim, decreeing title to the subject lands in him. Appellants filed a motion for judgment notwithstanding the verdict and a motion for new trial. Judgment was entered denying these motions and appellants appeal to this court, enumerating as errors the various judgments of the court and numerous antecedent rulings.

We affirm.

1. To be entitled to specific performance it was necessary for the claimant to prove the terms of the contract in a clear, distinct and definite manner. The proof must be so clear, strong and satisfactory as to leave no reasonable doubt as to the agreement. Thomas v. Crawford, 228 Ga. 34, 183 S.E.2d 768 (1971); Ray v. Sears, 220 Ga. 521(2), 140 S.E.2d 194 (1965); Veal v. Veal, 212 Ga. 471, 93 S.E.2d 751 (1956); First Nat. Bank etc. Co. v. Falligant, 208 Ga. 479, 67 S.E.2d 473 (1951); Barnett v. Henry, 200 Ga. 365, 37 S.E.2d 340 (1946); Salmon v. McCrary, 197 Ga. 281, 285, 29 S.E.2d 58 (1944); Brogdon v. Hogan, 191 Ga. 647, 654, 13 S.E.2d 666 (1941); Scott v. Williams, 167 Ga. 386, 145 S.E. 651 (1928). The fact-finder, in this case the auditor, having found a contract, and his findings having the approval of the trial court, we are relegated to the position of determining whether or not there was any evidence in the case to support his conclusion that a contract existed and that it had been fully performed by one of the parties. It is helpful that some of the parties to the original contract are living and recognize the agreement.

Conflicts in the evidence do not prevent the establishment of a contract. Abdill v. Barden, 221 Ga. 591, at 595, 146 S.E.2d 299 (1965); Daniel v. Weeks, 217 Ga. 388(6), 122 S.E.2d 564 (1961); Ray v. Sears, supra. Proof of performance may be shown by a preponderance of the evidence. We have examined the record in its entirety, and find that there was sufficient evidence under the above standards to support the finding as to the contract, as well as the fulfillment thereof by claimant. Mathematical certainty is not obtainable in legal investigation, but reasonable certainty is the rule.

2. Appellants contend that the claimant did not take possession of the land with reference to the parol contract because at the time the agreement was made the mother had a life estate in the same and she was entitled to possession. While partial payment with possession may be sufficient part performance to justify a decree of specific performance of a parol contract to purchase land (Hennon v. Gresham, 196 Ga. 197 (1), 26 S.E.2d 252 (1943), Code Ann. § 37-802), possession is not a necessary element of performance where the purchase price has been paid in full or, as in this case, the services have been fully performed.

Here the auditor found that the cross-claimant had fully performed the agreement by caring for his mother for her lifetime or a period of 18 years following the contract. With that, the instant case falls under rule applicable when the purchase price has been paid in full. Performance of that part of the contract having been completed, upon the death of the life tenant, claimant was entitled to sole possession. Code Ann. § 37-802. Sanders v. Bryant, 240 Ga. 825, 242 S.E.2d 717 (1978); Dollar v. Dollar, 214 Ga. 499 (3), 105 S.E.2d 736 (1959); Cowart v. Green, 194 Ga. 62, 20 S.E.2d 577 (1942); May v. Sorrell, 153 Ga. 47 (3), (111 S.E. 810) (1922). The making of improvements on the land by J. R. Savage, Jr. were not essential to entitle him to specific performance of the contract, but were admissible for the purpose of illustrating his performance of the agreement and for the further purpose of illustrating that upon full performance on his part, he could not be restored to his former position. Once the contract was made and performance thereof begun it could not be terminated by consent of less than all the parties. Gilleland v. Welch, 199 Ga. 341 (2), 34 S.E.2d 517 (1945).

3. The trial court did not err in refusing to submit issues of fact to a jury, thus denying a jury trial to appellants. ¹ Appellants filed exceptions of fact to the auditor's report, none of which was approved. In such circumstances the provisions of Code Ann. § 10-402 apply: "In all law cases where an auditor is appointed, exceptions of fact to his report shall be passed upon by the jury as in other issues of fact, And in equity cases by the jury when approved by the judge." (Emphasis supplied.) The judge, in trying an equity case, has the discretionary authority to approve or disapprove the exceptions to an auditor's findings of fact, and where he has exercised that discretion and approved the findings, and where there is evidence to support his findings, they will not be disturbed even though the evidence may be conflicting. Godfrey v. City of Cochran, 208 Ga. 149 (1), 65 S.E.2d 605 (1951); Mitchell v. Turner, 190 Ga. 485 (3), 9 S.E.2d 621 (1940); McCrea v. Ga. Power Co., 187 Ga. 708, 711, 1 S.E.2d 664 (1939); Griffith v. Moore, 185 Ga. 120 (1), 194 S.E. 551 (1937); Bradley v. DeLoach, 176 Ga. 142 (2), 167 S.E. 301 (1932).

The cases of Hotaling v. Anderson, 226 Ga. 327, 175 S.E.2d 5 (1970) and Franklin Reid & Co. v. Newsom, 53 Ga. 580 (1874), relied upon by the appellants for authority that specific performance cases may be tried by a jury are distinguishable. In those cases the court had not submitted the issues to an auditor.

4. There is no merit in appellants' contention that there was not sufficient evidence to prove beyond a reasonable doubt that one of the parties ratified or accepted the contract. Although it is true that there is some evidence that one of the parties was not present when the first contract was made, there was evidence that she was present at the second meeting, after the father's death, when all the parties reaffirmed the original agreement. The auditor found this to be true as a matter of fact. When approved by the trial court, conflict in the evidence would not be sufficient grounds for this court to set the same aside. Abdill v. Barden, supra.

5. Appellants contend that the decree cannot stand because there was a failure to join as a necessary party the executor and the administrator of the estates of two of the original children who are now deceased. As a general proposition of law, appellants' contention is sound. However, as was said in Belt v. Lazenby, 126 Ga. 767, 773, 56 S.E. 81, 84 (1906). "It seems well settled that an action for specific performance of a contract to convey land, Where there is no purchase money still to be paid, may, when the party contracting to convey is dead, be brought against his heir at law, without making the representative of his estate a party defendant." (Emphasis supplied.) In the instant case the heirs of each decedent having entered the case as parties seeking to have the property sold, and the proceeds divided among them as individuals, there is no valid reason why the court could not also, at the instance...