Johns v. Nix , 194 Ga. 152 ( 1942 )

1. So far as it might be contended that the plaintiff would be entitled to recover upon the theory of a parol gift, such contention must fail, because no gift was alleged with sufficient definiteness, nor was it alleged that valuable improvements were erected upon the property upon the faith of the donor's promise or declared intention to make a gift. Code, §§ 37-802, 37-804; Holland v. Atkinson, 112 Ga. 346 (37 S.E. 380); Swan Oil Co. v. Linder, 123 Ga. 550, 553 (51 S.E. 622); Hodgson v. Hodgson, 28 Ga. App. 250 (110 S.E. 754).

2. If the plaintiff could recover as contended for in Coffey v. Cobb, 140 Ga. 661 (79 S.E. 568), 146 Ga. 689 (92 S.E. 57), upon the theory of an oral contract of purchase and sale, the fact that such contract was made must be clearly alleged (Swan Oil Co. v. Linder, supra), and all the material terms of the contract should be clearly stated. F. W. Grand Stores v. Eiseman, 160 Ga. 321 (127 S.E. 872). The decision cited dealt with indefiniteness of a written instrument. Where the supposed contract is oral as in the instant case, there is at least the same or a greater necessity for definiteness in stating the terms of the agreement. See Taylor v. Boles, 191 Ga. 591, 599 (13 S.E.2d 352), and cit.

3. Under the foregoing principles the petition failed to allege a cause of action, and the court erred in overruling the general demurrer.

Judgment reversed. All the Justicesconcur.

No. 14029. MAY 26, 1942. REHEARING DENIED JUNE 15, 1942. On February 21, 1941, J. W. Payne, a railroad locomotive engineer who had never married, died intestate at the age of seventy years, leaving no descendants. In 1932, while so employed as engineer, he purchased a described house and lot in the City of Atlanta and received a deed in his own name, which was duly recorded. Mrs. Agnes C. Nix, thirty years his junior, had been his devoted friend since she was ten years of age. Payne purchased the house and lot for Mrs. Nix's "use, control, ownership, to have and keep as her property." He delivered to her the deed he had received, and thereafter until he died he paid taxes and repairs on the property, and turned the receipts over to her. Mrs. Nix assumed possession of the property by renting it to tenants and collecting and appropriating the rents with Payne's consent, covering a period of about eight years during all the time until Payne died. At the time of such purchase of the house and lot Mrs. Nix and her husband maintained a home at a different place in Atlanta. For his own convenience Payne established and maintained a telephone in the Nix home, and Mrs. Nix received his calls from the employing railroad company and reported them to Payne. In addition to this service and as further consideration for the house and lot, Payne "was to and did use . . as his own, the full benefit [of the Nix home] to rest from his labors and relax therefrom, frequently had meals at . . said home, and . . did have and use said home as if a member of the family, had every access thereto as is customary for members of a family, . . and paid . . nothing for such use except to have, hold, keep, and own said property in fee simple, and . . from the date [Payne] purchased said property and delivered the same to [Mrs. Nix] she accepted the same based upon the foregoing conditions. [Payne] did have the use of [the Nix home] up to the time [he] died, . . and by reason thereof [Mrs. Nix] performed all and every part of the agreement by and between her and [Payne], and said agreement . . was oral." All of the foregoing was by consent of Mrs. Nix's husband, and that she should be entitled to her earnings. In 1934 Payne caused to be prepared a deed conveying the house and lot to Mrs. Nix, but did not sign it. He directed the attorney to hold it until a later date, declaring at the time that Mrs. Nix owned the property in fee simple. After death of Payne his niece, Mrs. J. O. Johns, became administratrix of his estate and demanded rents from the tenants. In June, 1941, less than a year after the death of Payne, Mrs. Nix brought suit against Mrs. Johns, for specific performance and for injunction to prevent interference with possession of the land. The petition as amended alleged the facts substantially as stated above. General and special grounds of demurrer were overruled, and Mrs. Johns excepted.