When a parol agreement whereby one is to receive title to land, in consideration for services rendered another, is sought to be enforced, the proof of such contract should be so clear, strong, and satisfactory, as to leave no reasonable doubt as to the agreement.
No. 15382. FEBRUARY 21, 1946. W. C. Barnett and others filed a statutory proceeding in the Superior Court of Fannin County for partition by sale of described lands in that county, alleging that Thomas Henry, the defendant, was a resident of Fannin County; that the petitioners and Thomas Henry inherited said property from Judie Henry, the petitioners being children of Caroline Barnett, a sister of Judie Henry, except one petitioner Leroy Barnett, who was a child of Laura Barnett, a daughter of Caroline Barnett, and Thomas Henry being a brother of Judie Henry; that the petitioners have given to Thomas *Page 366 Henry the statutory notice for partition by sale; and that to partition said real estate by metes and bounds would depreciate its value, there being only 22 acres of land involved.
Thomas Henry filed his response, admitting residence, and that the property was accurately described. He denied that the petitioners inherited property from Judie Henry, and alleged: "That before the death of said Judie Henry she by parol transferred the title to said property to this defendant, and just before she was to execute the deed to defendant she was suddenly stricken and died before having executed said deed; defendant alleges that he was to take care of said Judie Henry and see to it that she had a Christian burial, all of which this defendant did at considerable expense, for which he was to have said property." More than four years prior to the death of Judie Henry, she was getting old and feeble and she realized that it might be necessary for her to depend upon her brother (defendant); and she told him that she wanted him to have her property, that she wanted him to take care of her while she lived, if and when she reached the point she was unable to take care of herself, that she wanted him to see to it that she have a decent burial, and if he would do that, she would make him a deed to said property, and he could take charge of it, control it, pay the taxes on it, and it was his property. He further alleged: That he made such agreement, took charge of the property, paid the taxes, gave Judie Henry a Christian burial, paid all expenses; that Judie Henry died suddenly and before she had executed the deed under the agreement, but that the property had been turned over to him prior to her death, and he went into possession under said agreement; that he took the property in good faith, has held it in good faith, has paid the taxes, burial expenses; that none of the petitioners has made any claim or offered to pay the taxes on said property until the giving of the notice to partition, Judie Henry having been dead for about four years. The petitioners have no right, title, or interest in the property described. The defendant is the sole and exclusive owner of said real estate, has been in the open, exclusive, adverse, uninterrupted, peaceable, and quiet possession thereof for more than seven years. The property is hardly worth the amount paid by him for taxes and burial expenses; and to partition the same would be an injustice to him and deprive him of that which is rightfully *Page 367 his property. He prayed that the application for partition be denied; that if partition is allowed, the amounts paid by him in taxes, funeral expenses, and improvements be set off against the claims of the petitioners; and that title be decreed in him.
By amendment, the word "transferred" (appearing in the quotation from the above petition) was stricken, and the words "contracted to convey" were substituted in lieu thereof. The defendant further amended by alleging that he had fully performed the contract made with Judie Henry; that he took care of her after the date of said contract by providing clothing, food, and necessaries of life; that he performed each and every obligation resting upon him by virtue of said contract; and that he is entitled to specific performance of said contract and a decree of title in him.
When the case was called for trial, the court stated that, under the pleadings, it was conceded by Thomas Henry that Judie Henry owned the property during her lifetime; that, unless he established the making of the contract as contended, and performance by him as alleged, the petitioners would be entitled to have the property sold, their interest being as alleged in the application for partition, and to have the proceeds divided as contended, less whatever sum the defendant might show he has expended and for which he might be entitled to reimbursement; and that the defendant admitted a prima facie case in favor of the petitioners unless he established his contentions as set up in his response, thereby assuming the burden of proof.
The defendant offered as evidence to support his contentions the testimony of Wade Allen, Mrs. M. A. Ferguson, and himself, the material parts of such testimony being hereinafter quoted.
Wade Allen testified as follows: "I know Thomas Henry over there, and I knew his sister Judie Henry in her lifetime . . . They lived together for a good many years, until after Thomas married, and then she built her a house and lived up on the hill to herself. I really don't know just how long that was before she died, but some few years, . . I have talked with her about or heard her discuss her family affairs and particularly the home where she lived, as to what she agreed to do with it before her death . . . She said she wanted Tom over there to have what she had. As to whether or not she said she had made any agreement *Page 368 of that sort with Tom — she said she had, she had paid out a lot on the Barnetts, she and Tom there. . . As to what she said about whether Tom had agreed to look after her — well, she said that Tom was the only one that done anything for her, stayed there with her and looked after her, and she wanted him to have at her death all she had. That is what she told at my house several times. I expect I heard her make that statement a half a dozen times or more at my place. Tom looked after her and hauled her wood. He helped to provide for her, carried in rations and things like that . . . She was not ill very long before she died, because she came down town the day she died, that morning early, and got some clothes to wash for Arthur Black's sister that lived in Atlanta, and she came over to my house to see my wife about something, and then she went on home and in a little while we heard that she was dead. I had seen Tom hauling in wood there. Tom looked after her, so far as I know; . . I never heard Judie complain of Tom, that Tom wouldn't look after her. . . I do know that she certainly worked, but I don't think she worked every day. . . As to whether or not the only thing she ever said to me was that she wanted Tom to have what she had — yes, sir, she said that several times in my presence; she said he was the only one that done anything for her. I know that she didn't work every day before she died. I think she went up there to [her] wash-place and started to wash and died. I know that Tom carried in wood there, and he carried in stuff there when they lived together. . . Tom carried in some rations there, because he bought stuff from me when I was in business there, and he went towards home with that . . . She left Tom after Tom married, and she went up there and built her home. So far as I know she paid for the building of that herself."
Mrs. M. A. Ferguson testified: "I have lived near or in Mineral Bluff, during the lifetime of Judie Henry, and in her latter years I saw her and she came to my house very often. I have heard her discuss the question of her properties and what she had agreed to do with that, with her land and place out there; she told me that she intended for her brother Tom to have all her property, that he was the one that was helping her, and she intended for him to have it, and she had already told him that she meant for him to have it; that she had already told him at her death it was *Page 369 his. Tom lived there by her at the time I knew them. . . As to whether or not Tom was there looking after her — well, she said he did, is all I know. She said he was looking after her and taking care of her, and was the only one that was. And that was the reason she told him her property was his at her death. I heard her make that statement different times. . . When I knew her Tom had already married, and Judie had her home and was living out to herself. . . She told me she wanted Tom to have all she had. I don't know that I could say that I ever saw Tom do a thing for her in my life, but I know she said he did. The many times that I was around there I never saw him haul a stick of wood or take a thing in there for that old colored woman, only just what she told me, and I lived close by there but not in sight of her. . . And as to whether or not I know of my own personal knowledge that Tom ever furnished her a bit of rations or carried her a load of wood or anything — all I know is just what she told me."
Thomas Henry, the defendant, testified: "From the time of my sister Judie's death about 1938 up until 1943, a period of approximately five years, I had possession of that property out there, this land, this little place she owned out there, the 22 acres of ground where she lived. I bought her casket when she died, and had her embalmed and paid for that. . . Then since the death of my sister I have paid the taxes on that property, every year. . . I paid those every year myself, for seven years, and I had paid the taxes on it for some time before she died. . . I was there all the time where she was when she needed me. I lived there in the house with her until I married; I lived there for thirteen years, me and her together. When I married then Judie just moved out, built her a house of her own; and she went in a house by herself after she did that. This house where she lived then was just a short distance across the hill from where I lived, about 200 or maybe 300 yards or a little better. . . I said that I had been in possession of that land out there, by that I mean paying taxes on it. By possession I mean my sister put me in possession of it, gave it to me."
Witnesses testified for the plaintiffs as to matters other than the alleged contract and alleged services pursuant thereto, and such evidence is not material to the questions for determination by this *Page 370 court. The jury found for the defendant; the petitioners filed a motion for new trial on the general grounds only; and the motion being overruled, they excepted. The question for determination by this court is, whether or not the evidence shows that the deceased, Judie Henry, and her brother, Thomas Henry, the defendant, made such a parol contract for land as would support a decree for specific performance.
It appears from the testimony of Wade Allen and Mrs. Ferguson that the deceased, Judie Henry, on several occasions stated that she wanted her brother, Thomas Henry, to have her property. It nowhere appears in the evidence of either of the witnesses for the defendant that such a contract as is required by the decisions of this court to support a decree for specific performance was ever made and entered into between the deceased and her brother.
The pleadings are vague and uncertain as to the alleged contract. From them it can not be determined with any degree of certainty whether it is claimed that the contract was made during the time the deceased and her brother were living together prior to his marriage, or whether the alleged contract was made after such marriage and after the deceased had left the home of her brother and built a home of her own. The allegation is made that more than four years prior to her death the deceased "told this defendant that she wanted him to have her property, that she wanted him to take care of her while she lived if and when she reached the point where she was unable to take care of herself." There is no allegation in the petition that Judie Henry was ever unable to take care of herself. The evidence for the defendant shows that show had gone to her wash-place to work when she was suddenly stricken and died.
It is undisputed that the defendant paid the funeral expenses of his sister. Numerous tax receipts were introduced by him in support of his contention that he had paid taxes on her property. While the allegations of the response filed by Thomas Henry make burial expenses and the payment of taxes a part of the alleged contract, these items are not referred to in the testimony of the witnesses, Wade Allen and Mrs. Ferguson, upon whose evidence the respondent relies to establish the contract alleged. *Page 371
The testimony of Allen was to the effect that he had seen Henry haul in wood there, and that he had taken in rations. From the evidence of this witness as to when these rations were carried in, it is not shown that this occurred after the date Thomas Henry married and his sister built a home and lived to herself, but the inference is that such transactions occurred during the time the defendant and his sister were living together.
The rule with reference to such a contract as is here sought to be established has been stated many times by this court. InMiller v. Cotten, 5 Ga. 341, it was held: "To justify the specific execution of a parol agreement, its terms and conditions should be precisely stated. If the contract, which is sought to be performed, is vague and uncertain, or the evidence does not support it, equity will not enforce it."
In Printup v. Mitchell, 17 Ga. 559 (63 Am. D. 258), the court stated the rule with reference to parol contracts for land as follows: "A parol contract for land, like the reformation of a deed by parol proof, should be made out so clearly, strongly, and satisfactorily as to leave no reasonable doubt as to the agreement."
In Shropshire v. Brown, 45 Ga. 175, the court held: "To entitle a complainant to a decree for a specific performance of a parol contract for the sale of land, the contract must first be established with reasonable certainty, and the consideration claimed to have been paid or rendered therefor must be clearly and satisfactorily proved to have been paid or rendered, in pursuance of that contract; otherwise, a specific performance of the alleged contract should be refused."
In Bird v. Trapnell, 149 Ga. 767 (102 S.E. 131), on a similar question, this court held: "Equity will specifically enforce a parol agreement entered into between two persons, by the terms of which one is to perform certain services during the lifetime of the other, and the latter is to convey certain land at or before his death in consideration of such services, if the contract be definite and specific, based upon a full or partial performance of consideration in the way of services performed on the one side and a failure or refusal to perform on the other, and the proof of such contract be clear, strong, and satisfactory. The evidence in this case not measuring up to the rule just stated, the court did not err in granting a nonsuit." *Page 372
In Scott v. Williams, 167 Ga. 388 (145 S.E. 651), with reference to the degree of proof required of such contracts, it was held: "This question has recurred from time to time, and in one or more cases it has been remarked that the phrase `reasonable doubt' has application to criminal and not civil cases; but in all of the decisions the rule has been clearly recognized that such a parol contract must be established by proof that is clear and satisfactory, and to a degree of mental conviction stronger than a mere preponderance of the evidence." Certainly in the present case the evidence does not measure up in any degree to the requirements as stated in Scott v.Williams, supra.
It is strongly inferred by the testimony of the witnesses for the defendant in the present case that his sister preferred that he have her property. Under the allegations and proof, as evidencing a desire of the deceased, the same is within the rule of Studer v. Seyer, 69 Ga. 125, where the deceased by an invalid will had undertaken to convey his property, in gratitude for services rendered him. The court held that no such contract was shown as would authorize a decree for specific performance, and stated further: "Admitting to the fullest extent that upon the execution of the paper it was the most earnest wish and desire of the intestate to have given to the complainant his entire estate, a court of equity can not lay its hands upon such a fact, with all others herein established, and decree a specific performance of so invalid a paper, how strongly soever it may have been desire by the person making it at the time of its execution. The absence of all those material elements which are necessary to decree a specific performance makes it simply impossible for a court of equity to entertain a bill for such a purpose in such a case."
In the present case, as in Studer v. Seyer, supra, the court can not substitute the wishes and desires of the intestate for a contract, such as would authorize a decree for specific performance. In this connection see also Beall v. Clark,71 Ga. 818; Poullain v. Poullain, 76 Ga. 420 (2) (4 S.E. 92); Harper v. Kellar, 110 Ga. 420 (35 S.E. 667); Dwight v. Jones, 115 Ga. 744 (42 S.E. 48); Warren v. Gay,123 Ga. 243 (51 S.E. 302); Coffey v. Cobb, 140 Ga. 661 (79 S.E. 568); Smiley v. Smiley, 144 Ga. 546 (87 S.E. 668);Gordon v. Spellman, 148 Ga. 394 (2) (96 S.E. 1006);Lloyd v. Redford, 148 Ga. 575 (97 S.E. 523); Steed v. *Page 373 Bentley, 152 Ga. 267 (3) (109 S.E. 498); Brittain Bro. Co. v. Davis, 174 Ga. 1 (161 S.E. 841); Johns v. Nix,194 Ga. 152 (2) (20 S.E.2d 758); Salmon v. McCrary,197 Ga. 281 (29 S.E.2d 58); Haynes v. Ellis, 199 Ga. 702 (35 S.E.2d 151). In this case there was no evidence of such a contract as would support a decree for specific performance. It was error to overrule the motion for new trial.
Judgment reversed. All the Justices concur.