dissenting.
I must respectfully dissent to the opinion expressed by the majority. The facts of this uncomplicated case show that the appellant, J. Newton Bates, in 1975 purchased land from his father. The sale provided for a purchase price of $10 and the giving of a warranty deed. To clarify the manner of payment and the amount of the purchase price, a contemporaneous agreement was prepared and signed by the parties, not in any way contradictory of the basic, original agreement but in explanation thereof. That agreement called for payment of $5,000 per year to Bates’ father for 19 years (i.e., $85,000) to be accumulated from an annual pecan crop harvest on the land. Should the father die during the continuum of the payments, the remainder up to the maximum of 18 were to be paid to Bates’ mother. Should she likewise die before all payments were accomplished, all further obligation ceased. The record is silent as to why, but Bates made only one payment to his father during the period 1975 until 1979, when the elder Bates died. This check remained uncashed. Thereafter, Mrs. Bates sued her son for the four unpaid installments owing to her husband’s estate ($20,000) and the two installments due her under the contract from the time of her husband’s death in 1979 and the time of the complaint in 1981. Appellant son admitted executing the two documents creating the indebtedness and that he had not made any payments thereon except for the one uncashed $5,000 check. Thus in effect, he had made no payments at all.
Appellant does not dispute that any contract for the sale of land or other interest in or covering land must be in writing. Code Ann. § 20-401 (4); Krueger v. Paul, 141 Ga. App. 73, 75 (232 SE2d 611). *273Moreover, there is no contest that a contract required to be in writing ordinarily can only be modified by a subsequent agreement also in writing. Augusta Southern R. Co. v. Smith & Kilby Co., 106 Ga. 864, 867 (33 SE 28). This is the very essence of the Statute of Frauds, that a contract required to be in writing cannot be modified subsequently by an agreement in parol. Gulf Oil Corp. v. Willcoxon, 211 Ga. 462 (2) (86 SE2d 507); Jarman v. Westbrook, 134 Ga. 19 (2) (67 SE 403).
Appellant Bates seeks to avoid the restraints of the Statute of Frauds by asserting his mother, the appellee herein, told him while they were working out details of the father’s estate in 1979 that Bates would not further have to honor the sales contract; that he could keep the pecan money for he needed the money worse than she did; and though she refused him further storage use of the barn; that in reliance on her release and accord and satisfaction of the debt he had expended money to build his own barn. Thus, Bates offered his pleadings and deposition testimony as unrefuted evidence that there had been a gift from his mother to himself and further that this evidence showed a parol contract amounting to an accord and satisfaction the consideration being in effect love and affection. Bates argues that the parol evidence rule is thwarted by his partial performance in building his own barn.
The majority has accepted these arguments and has concluded that the unrefuted evidence offered by Bates raises issues of fact which preclude the grant of summary judgment to Mrs. Bates. It is at this point that disagreement occurs.
Logic persuades one that where parties enter into a written contract for the sale of land, required to be in writing, and thereby modify the terms of that contract by a parol understanding entered into upon consideration and both parties agree to the existence of the agreement, but one party later either disputes its meaning or having made a bad modification, wishes to disavow it, the law allows parol evidence of the agreement to reach the ultimate agreement of the parties. That rule cannot have the same efficacy, however, where one party claims the parol agreement and the other denies the existence of such an agreement. To allow evidence of the parol understanding upon the sole assertion of one party of the alleged existence of parol modification of the contract and an unsupported assertion that the agreement was entered into upon adequate consideration resulting in either a gift or an accord and satisfaction wholly emasculates the parol evidence rule particularly where the other party admits only and insists upon the original written contract. The fact that such assertions appear in affidavits or depositions taken in support of or denial of a motion for summary judgment make such assertions no less a violation of the rule. The ex parte evidence is admissible neither *274in the case in chief nor in a summary judgment action. See Wolfe v. Deaton, 225 Ga. 412 (169 SE2d 311).
Upon the basis of the facts presented in this record, I would concur with the conclusion of the trial judge that appellant’s proffer of evidence violates the parol evidence rule. In the absence of the inadmissible evidence, there remains no issue of fact for determination by a fact finder. Accordingly, I would affirm the judgment.
I respectfully dissent. I am authorized to state that Presiding Judge Shulman, Judge Carley, and Judge Pope join in this dissent.