1. To make out a prima facie case in a suit for specific performance of a parol contract to devise land, the agreement, including a description of the land to be devised, must be proved so clearly, strongly, and satisfactorily as to leave no reasonable doubt as to the contract.
(a) A plaintiff's petition is not ordinarily evidence in his favor; and, though a witness testifies that he has read the petition and that its contents are true, such testimony has no probative value.
2. The instruction that, if the jury found that the petitioner and the decedent during his lifetime entered into a contract substantially as set forth in the petition, and if the petitioner performed the contract so far as she was obligated by rendering the services contracted for, they would be authorized to find for the petitioner, when considered in the light of the charge as a whole, was not error for any reason assigned.
3. The instruction that "the contract would not be inequitable merely because [the decedent] did not live more than several years, for under such conditions the early death of [the decedent] must have been in the contemplation of the parties at the time the contract was made," was not properly adjusted to the pleadings and evidence.
No. 15347. JANUARY 15, 1946. Mrs. Gatha Dempsey Holliday filed in Muscogee Superior Court, against Mrs. J. W. Patrick, as administratrix of the estate of J. W. Patrick, a petition alleging a parol contract, made by J. W. Patrick with the petitioner, to execute a will and devise described realty to the petitioner in consideration of enumerated services, in the nature of household duties and nursing to be rendered to Patrick's mother, who was an old lady. It was alleged: That the petitioner entered upon these services on July 1, 1937, and performed them until November 15, 1937, when Patrick advised her that his mother's condition was so much improved her constant attention to his mother was no longer necessary, but that she should hold herself in readiness to return and continue the services when called upon. Patrick's wife died on June 18, 1939, and he notified the petitioner that he was taking his mother to *Page 260 his home and desired the petitioner to come and live with them, as he was in poor health himself and required certain specified household duties and nursing to be rendered to himself and his mother; and at this time he reaffirmed his previous agreement to devise the described realty to her. The required services were rendered until September 28, 1939, when Patrick remarried and moved his mother back to her home; but the petitioner and her husband remained in Patrick's home until December 15, 1939, when they moved to a nearby house of Patrick, where she continued to render the agreed services to both Patrick and his mother, though at this time they all lived in separate homes. She continued these services until his mother died on November 10, 1940, and until he died on March 10, 1944. She alleged that she had performed the contract, but that Patrick did not make a will in compliance with his agreement, and he died intestate.
In her petition, the real estate which she alleged Patrick had agreed to devise to her was described as follows: "All that tract and parcel of land situate, lying, and being in Muscogee County, Georgia, more particularly described as follows: beginning at a point on the north side of the Gray Rock Road, at the intersection of the Gray Rock Road and Hamilton Road, running thence along the eastern side of Hamilton Road in a northerly direction a distance of two hundred feet, thence running easterly along the line of Slaughter lands a distance of seven hundred and sixty-five feet, thence in a southerly direction along the line of Slaughter lands, a distance of twenty-seven feet to the north side of Gray Rock Road, thence in a westerly direction, along the north side of Gray Rock Road a distance of seven hundred and sixty feet to the point of beginning; and being the same lands as those described in a deed from B. E. Slaughter to Lillie O. Slaughter recorded in Deed Book 24, page 520 in the office of the clerk of the superior court of Muscogee County, Georgia; containing three acres of land, more or less, and being also the same lands as those described in and conveyed by deed from Lillie O. Slaughter to J. W. Patrick recorded in said clerk's office in Deed Book 125, page 127; upon which said real estate there is now situated a rock store and dwelling consisting of a storehouse, and immediately adjacent thereto dwelling quarters consisting of bedroom, dining room, kitchen, and two toilets or rest rooms. There is also situated on said tract a *Page 261 four-room frame dwelling or dwelling house, the same being the one erected or constructed by the said J. W. Patrick in or about the year 1942."
The prayer was for a specific performance of the contract.
Mrs. Holliday introduced evidence, but Mrs. Patrick, as administratrix, did not. The jury found for Mrs. Holliday, and a decree, describing the property as set forth in the petition, was entered.
The case comes to this court on exceptions to the overruling of a motion for new trial. 1. Under the general grounds, we will consider only the question of whether or not the evidence supports the allegations as to the realty described in the petition. The real estate which the petitioner alleged Patrick promised to devise was described definitely in the petition; but, in seeking to establish by evidence the real estate in question, the requirements of the law in this respect were not met. There was no sufficient identification, by evidence, of the property alleged to have been contracted to devise. The husband of the petitioner, who was the principal witness, referred to the property in question many times by the use of such phrases as "the store," the "combination rock store and house," the "store and filling station," the "filling station and little dwelling," and a "home." He also testified that Mr. Patrick consulted the petitioner during the building of the "combination store and filling station," and said that he wanted her to "stake this lot off," as it was being built for her. While the witness testified that the "three acres and rock house belonged to Mr. Patrick" during his lifetime, and that at his death it would belong to the petitioner, he did not in any way identify the land referred to as being the "three acres of land, more or less," upon which there was a "rock house and dwelling," and also a "four-room frame dwelling," as set forth in the petition, or testify that the land referred to was the only three acres and rock house that Patrick owned at the intersection of the Gray Rock and Hamilton Roads. From the testimony of the petitioner's husband, it would seem that the realty which Patrick agreed to devise was a combination store and filling *Page 262 station, without a description of any land upon which it stood. Neither is there anything in his testimony which establishes by the degree of proof required that the four-room dwelling house, or the balance of the three-acre tract described in the petition, was included in the contract. Nor does the testimony of Miss Marie Dixon, B. E. Slaughter, or O. C. Dempsey, make it clear that the tract described in the petition was the realty covered by the alleged agreement. In an action in equity for specific performance of an alleged parol contract to make a will, the agreement must be proved so clearly, strongly, and satisfactorily as to leave no reasonable doubt as to the contract. Salmon v.McCrary, 197 Ga. 281, 285 (29 S.E.2d 58), and citations.
(a) It is insisted by the defendant in error that any defect in making out a prima facie case as to the description of the realty involved was cured by the following testimony of the petitioner's husband: "Q. Have you read over this petition? A. Yes, sir, a little, not much. Q. Have you read the petition over? A. Yes, sir. Q. Do you know what it contains? A. Yes, sir. Q. State whether or not the allegations of fact therein are true? A. It is true."
The "petition" was not introduced in evidence. While there is nothing to identify the "petition" referred to as being the petition of the plaintiff in the lower court which contained a description of the realty in question — yet, assuming it so to be, this would not be legal testimony to establish the truth of every allegation contained therein. A party's pleadings are not ordinarily evidence in his favor. Hawkins v. Chambliss,120 Ga. 614 (48 S.E. 169); Mitchell v. Great Atlantic PacificTea Co., 7 Ga. App. 824 (2) (68 S.E. 343); Lancaster v.Ralston, 58 Ga. App. 404 (198 S.E. 839). The pleadings merely present the issues, and, where denied by the opposing party, must be established by aliunde proof. It would be revolutionary to our system of jurisprudence to permit a plaintiff to establish the allegations of the petition and make out a prima facie case by merely testifying that the contents of the petition are true. The effect of such a ruling would prevent nonsuits, demand directed verdicts, eliminate new trials on grounds of the insufficiency of evidence, and create many other drastic and abhorrent innovations affecting the law of allegata and probata. Many other reasons may be assigned for declining *Page 263 to give any credit to such testimony, but suffice it to say that in a suit of this nature such evidence has no probative value.
It follows that the evidence was insufficient to support the verdict in favor of specific performance of the contract.
2. One special ground of the motion for new trial complains because the court charged: "Gentlemen, if you find, after a full consideration of the evidence and the law as given you in charge, that Mrs. Holliday, the plaintiff, and Mr. J. W. Patrick, during his lifetime, entered into a contract substantially as set forth in . . the petition, and that Mrs. Holliday did perform the contract so far as she was obligated to do by rendering the services contracted for, and if you further find that the said Mr. J. W. Patrick breached the contract by having failed or refused to make his will devising the property described in . . the petition to Mrs. Holliday as he had contracted to do, if you find that he had so contracted, you would be authorized to find for the plaintiff." The criticism is, in effect, that the word "substantially" relaxed the strict requirements as to the high degree of proof required to warrant specific performance of an oral contract to devise land in consideration of services rendered a deceased during his lifetime.
Before giving the instruction complained of, the judge charged the law as to the preponderance of evidence, and then stated: "In a case of this nature there is even a stronger rule or an additional feature to the rule as to preponderance of evidence. . . Specific performance of the contract will be decreed, where the parol contract is established so clearly and satisfactorily by the evidence as to leave no reasonable doubt on the minds of the jury as to the contract, and its performance on the part of the plaintiff, and the breach thereof on the part of the decedent. . . There can be no recovery by the petitioner . . until she has proven to your satisfaction, by a preponderance of the evidence, clearly and strongly and so satisfactorily as to leave no reasonable doubt."
The instruction complained of, considered in the light of the charge as a whole, is not subject to the criticism made upon it.Landrum v. Rivers, 148 Ga. 774, 783 (98 S.E. 477);Epperson v. Stancill, 180 Ga. 857, 858 (181 S.E. 170).
3. Another special ground complains because the court charged: "If you find that there was a specific contract made and entered into between the plaintiff and Mr. Patrick, and that *Page 264 it was performed by the plaintiff, and that Mr. Patrick breached it by failing to make a will devising the specific property to the plaintiff which he had contracted to devise, if you find he did so contract, then I charge you that under such conditions the contract would not be inequitable merely because Mr. Patrick did not live more than several years, for under such conditions the early death of Mr. Patrick must have been in the contemplation of the parties at the time the contract was made, if one was made." The criticism is that the charge was erroneous because: (a) it was the expression of an opinion; (b) there was no evidence to support it; (c) there was no evidence that the early death of Patrick was in the contemplation of the parties when the contract was made; (d) the conditions enumerated by the court were not indicative of the early death of Patrick; (e) there was no evidence on the subject as to how long he would probably live; (f) the charge instructed the jury as to a fact that was not proved.
The charge as given was not properly adjusted to the pleadings and evidence. The petitioner alleged that she entered into the original contract with Patrick on July 1, 1937, whereby she was to render specified services during the lifetime of his aged mother. While the petition contains allegations to the effect that the agreement was reaffirmed on June 18, 1939, at which time the petitioner agreed to render similar services to Patrick and his mother, it was not alleged in count one how long the services to Patrick were to continue. Allegations were set forth in count two to the effect that the services were to be rendered during Patrick's lifetime as well as the lifetime of his mother, but this count was stricken by the trial judge and the case proceeded to trial only on count one, which, as shown by the transcript of the record sent to this court, did not allege how long the services were to be rendered to Patrick. While there was evidence to the effect that Patrick was in poor physical condition and needed nursing, and that the services were rendered to him as long as he lived, there was no evidence tending to show that his condition suggested an early death. In the above circumstances, the life expectancy of Patrick would have no effect on the question as to the enforceability of the alleged contract. On the contrary, the enforceability of the contract in equity would depend upon whether or not it was shown to be fair, equitable and just, when tested by the *Page 265 life expectancy of the mother as of the date of the contract, and the court did not charge upon the above principle.
Since a new trial is granted because the evidence was insufficient to support the verdict, it is not necessary to decide whether the use of the language, "the contract would not be inequitable merely because Mr. Patrick did not live more than several years, for under such conditions the early death of Mr. Patrick must have been in the contemplation of the parties," would, if standing alone, have constituted reversible error.
Judgment reversed. All the Justices concur.