The evidence sufficiently supported the allegations of count 1 of the petition as amended, seeking specific performance of an oral gift of land, which, as ruled by this court in Milton v. Milton, 195 Ga. 130 (23 S.E.2d 411), set forth a cause of action.
No. 14687. NOVEMBER 10, 1943. C. E. Milton filed a petition against Mrs. Mozelle Milton individually and as executrix of the will of J. J. Milton, her deceased husband (who was the father of the petitioner and of Mrs. Milton's two daughters who were petitioner's half-sisters), seeking specific performance of an alleged parol promise by his father to give to him a described tract of land. The trial court overruled the defendant's general demurrer, and that judgment was reversed by this court. Milton v. Milton, 192 Ga. 778 (16 S.E.2d 573), *Page 841 where may be found a statement of the pleadings. After ruling that a petition for specific performance must, under the Code § 37-804, show (1) the promise to give, (2) a meritorious consideration, (3) possession in his own right by the donee, and (4) the making of valuable improvements, this court held that the petition showed that the possession of the petitioner, under the pleaded facts, was as a tenant of the father, entry having been made under an agreement to pay rent during the lifetime of the father; and that the petition did not set forth a cause of action.
Before the remittitur of this court was made the judgment of the trial court, the petitioner filed two amendments, one striking the allegations which this court construed put him in the position of a tenant, and substituted an allegation that the father put him in possession of the tract of land in question, directed him to go ahead and improve it, the land thenceforth to belong to the petitioner. The other amendment set up an additional count outlining the same transaction, but denominating it as an agreement on his part to purchase and on the part of the father to sell the land, it being alleged that in consideration of his going into possession, making certain improvements, and upon the payment to the father of the equivalent in money of three bales of lint-cotton annually for eight years and two bales thereafter annually until the death of the father, the petitioner would receive title to the property. In Milton v. Milton,195 Ga. 130 (23 S.E.2d 411), this court affirmed the judgment of the trial court overruling the defendant's general demurrer.
On the trial the jury returned a verdict for the petitioner. A motion for new trial was overruled, and the defendant excepted. The plaintiff in error urges only that the evidence did not authorize the verdict and showed that the petitioner was a tenant of the father, without possession in his own right, until the death of the father. There was sufficient evidence on the trial to support the allegations of the amended count 1 of the petition, which this court held set forth a cause of action. It was shown that in 1907 the father of the petitioner cut from his lands the tract here involved, pointed out the lines, and orally gave it to his *Page 842 son, telling him that he could go into possession of and make improvements on it as his own, and that the petitioner did in fact do so. There was testimony that the father, in connection with the gift, stipulated that the son should pay him annually a specified number of bales of cotton; and some witnesses testified that he referred to the payments as "rent." Because of this characterization it is contended by the plaintiff in error that "rent" negatives any theory of a gift, and shows only that a tenancy was created, and that the petitioner never held possession in his own right. The use of the word "rent" does not necessarily militate against the idea of a gift, when the evidence shows the intention of the father to make an actual gift, and, as here, all the essentials of the Code, § 37-804, are met. A similar state of facts existed in Aultman v. Gibson,172 Ga. 877 (159 S.E. 285), where a father made an oral gift of lands to his respective children, and where, as shown by the record which we have examined, his wants were simple, but in order to have some slight income and to pay taxes on the land for the benefit of the children he exacted of several of the donees that they make certain annual small payments to him as "rent." In that case this court said: "The conceded fact that the donee was to pay rent during the life of the donor, to afford means by which the donor could and did pay taxes and derive a means of living, does not alter the above ruling."
It is contended by the plaintiff in error that the only case made by the evidence is that which was originally pleaded, and which this court held did not set forth a cause of action. This contention is without merit. The original petition, as ruled by this court, showed the petitioner to have been only a tenant, while by the allegations of the amended petition, in count 1, he entered into the tract of land in his own right, and the evidence meets the law of the case as ruled by this court on its previous appearance. As then said by this court: "The weakness we found in the original petition was that it in substance made the plaintiff a tenant and his father the landlord; and this was considered as inconsistent with the theory of gift upon which he sought to recover. All reference to the rental was stricken by this amendment; and by the standard set forth above, the plaintiff has met the criticism, and has stated, in accordance with the rulings made in the former opinion, and with the authorities there cited, a case for specific performance of *Page 843 a parol gift of lands. The necessary elements enumerated in our former decision fully appear, and are not now, in this count of the petition as amended, neutralized by the showing of this other relation which was thought to be fatal to his case." The rent referred to in the original petition, which "was thought to be fatal to his case," was the usual rent which is paid by atenant to his landlord, which relation this court regarded as established by the pleadings; whereas by the amended petition the petitioner did not enter as a tenant but in his own right, and the "rent" exacted by the donor was not the rent of a tenant, but an incidental amount to be paid by the donee in the capacity distinguishable from that of a tenant.
Certain evidence is pointed out by the plaintiff in error, which, it is urged, shows that the petitioner never considered himself as having any interest in the land. Without discussing it in detail, we think it sufficient to say that it was not necessarily conclusive of the fact contended for, but was merely for the consideration of the jury as to the bona fides of the petitioner, and this question has been resolved by the jury in his favor.
Judgment affirmed. All the Justices concur.