concurring specially. I agree that the judgment in this case must be reversed, but my disagreement with the majority opinion is that it says that a seven-year limitation period is applicable in this case.
To me, a statute of limitation is just that, a statute. In our system a statute is enacted by the General Assembly of Georgia. A limitation period established by a judicial decision is not, in my opinion, a statute. And where a statutory limitation period conflicts with a limitation period established by judicial decision, then the former must prevail.
I do not find any statutory enactment establishing a limitation period of seven years in Georgia.
The appellant’s claim in this case against the executor is either an action for specific performance of an oral contract to convey *770land or for the breach of an oral contract to convey land. Code § 3-706 provides: "All actions ... for the breach of any contract not under the hand of the party sought to be charged . . . shall be brought within four years after the right of action shall have accrued.” Code § 3-711 provides: "All other actions upon contracts express or implied, not hereinbefore provided for, shall be brought within four years from the accrual of the right of action.”
It is my view that the appellant’s claim here is nothing more than an action to enforce an oral contract or an action to obtain damages for breach of an oral contract. Therefore, a four-year limitation period as established by the above-quoted statutes is applicable.
I agree with Chief Justice Russell and Justice Atkinson in their partial dissent in Whittle v. Nottingham, 164 Ga. 155, supra, p.161, where they dissented from the ruling in Headnote 3, saying: "That ruling purports to fix a period of seven years as one of arbitrary limitation, without legislative enactment to that effect.”
In short, I think that a judicially established limitation period must and should give way when there is an applicable limitation period enacted into law by a statute passed by the General Assembly of Georgia. I would not hold that a seven year limitation period is applicable in this case.
I am authorized to state that Mr. Justice Jordan joins in this special concurrence.