Harper v. Gorley , 128 Ga. 444 ( 1907 )

Cobb, P. J.

(After stating the facts.)

The pléa, in effect, is an effort to compel specific performance of an agreement for the sale of the interest of the defendant in the ten acres of land to the plaintiff. It is an application of the vendor to. compel the vendee to accept the deed and make an appropriation of the purchase-money in the manner set forth in the agreement. While the plea does not, in terms, allege that the agreement was in parol, this may possibly be inferred from the averments of the same, when the plea is taken as an entirety. Counsel for each party have so construed the plea, both in the trial court and in this court; and for the purposes of this decision we will allow this construction to be operative. The agreement being merely verbal, it is not enforceable, for the want of a writing, unless there are facts alleged which would amount to such a part performance as would make it a fraud to allow the party against whom the relief is prayed to defeat the opposite party by pleading the want of a writing. Mrs. Gorley was in possession. It is true that she was a tenant in common, but nevertheless she was in possession. There was no change in the status resulting from the agreement. The status was the same after the agreement as it was before. The defendant parted with nothing that he had prior to the agreement, and was paid nothing. The facts are not sufficient to make out a case of part performance. It is true that the plea avers, in effect, that the transaction relating to the eighty acres of land involved this matter, but the averments are so uncertain and indefinite as to the connection between these two transactions that it can not be said that they contain any matter which would be sufficient to take the case without the operation of the statute of frauds. If the decree for specific performance is denied, tbe defendant is not at all prejudiced. It is true that he will be compelled to pay the judgment on the note, but this judgment will in no way interfere with his prosecuting a suit to recover his undivided interest in the ten acres.

Judgment affirmed.

All the Justices concur.