This action of ejectment was brought by J. W. Epps, as executor of C. W. Epps, against Ada F. Story and Joseph Story. Joseph Story disclaimed title to the land sued for; and Ada F. Story filed an answer, denying the allegations in plaintiff’s petition, and claiming title to the property by virtue of a parol contract. The jury returned a verdict for the defendant, and the plaintiff excepts to the judgment of the court overruling his motion for a new trial.
1. There is no material conflict of evidence bearing upon the issues of fact in this case. The evidence was amply sufficient to authorize the conclusion by the jury that the defend
This is not a case, then, where the defendant insists upon her right of possession and her title to the premises in dispute by a mere voluntary agreement or gratuitous promise on the part of her father. It is well recognized that a specific performance of such an agreement could not be decreed. Yet it is equally well established that if possession be delivered in pursuance of such agreement, upon a meritorious consideration, and valuable iixxprovements made on the land by reason of faith in that promise or agreement, the father, at his option, can not rescind his agreement or revoke the gift. Hughes v. Hughes, 72 Ga. 174. Title by prescription growing out of adverse possession by a child of laxxds of the parent for seven years is based upon the conclusive presumptiorx of a gift. That provision of law has xxo applicatioxx to this case, for the principle above cited applies although the doxxee has xxot held severx years. See 72 Ga. 178, where a charge of the court below exiunciatixig that principle was affirmed. The facts in Denson v. Denson, 94 Ga. 525-6, are very similar to those developed by the record iix the present case. It appeared there that the parents, husband and wife, divided their land among their children and a daughter-in-law, allowing each his axxd her poi’tion; caused the land to be divided into separate parcels, and placed the daughter-in-law ixx possession of one of them, she agreeixxgto pay the owners annually a fixed sum for their support, axxd she occupied the land for several years, complying with the terms of her agreement. The original ownex’s evicted her from the premises. It was held that although the actual value of the premises for rent greatly exceeded the annuity she was to pay, she could maintaixx an action for the recovery back
The contention in this case, that the evidence tended to show the parent did not intend for the gift of this land to go into effect until his death, and that therefore the scheme of the agreement was testamentary in its character and could not be enforced, we do not think is at all sustained by the record. There is some testimony to the effect that the father intended to treat the land as a home for himself during his life, but the agreement actually made clearly explains what he meant by such a home; each child being obligated to furnish him for a specified time annually a support, and a place of abode on the premises. Besides, a reservation by a grantor of a certain limited interest in property for his life does not prevent thconveyance of property from taking effect in presenti. For example, one person can deed land to another and reserve in himself a life-estate, yet the deed would convey an immediate interest and title to the fee in remainder.
2. It is contended in this case, however, that there was no compliance by the defendant with her contract, in that she did not pay the annuity of thirty dollars per annum stipulated in the agreement. The reason why this annuity was not paid is because the defendant furnished her father a home, and took care of and provided for him at considerable expense, he being at the time blind, and needing more than usual attention, and this service extended over a much longer period of time than the contract required. It was shown that this extra expense amounted to more than the annuity, and that for this reason the father made no demand on his daughter for the cash payment stipulated in the contract. We think there was sufficient evidence for the jury to infer a novation of the terms of the original agreement to the entire satisfaction of both the parties.
3. It appears from the testimony that after the father had boarded with his daughter for a space of fourteen months upon the faith of. the contract that he ;had made with her, and after she had fully complied with all her obligations, as above indicated, he left her home of his own accord, without any cause or provocation whatever so lar as was developed by the evi
4, 5. There are several grounds in the motion complaining of certain charges of the court. After a review of these alleged grounds of error, we are satisfied that the charges complained of were substantially correct, and that the charge, taken as a whole, was full and fair, and clearly applicable to the undisputed facts disclosed by the record. The verdict was sufficiently supported by the testimony, and hence the court did not err in denying a new trial.
Judgment affirmed.