Cowart v. Green , 194 Ga. 62 ( 1942 )

1. A motion by the plaintiff to dismiss the defendant's cross-action for specific performance, based on the contention that the same was barred by the statute of limitation, was properly overruled, the suit being for recovery of land, the cross-action containing allegations to the effect that defendant was in possession under a contract, fully performed on his part, by the terms of which the property was to be his, he on the faith of such contract entering into possession, the pleadings disclosing no assertion against him of an adverse claim, and no fact or circumstance to put him upon notice of such claim, until the filing of the instant suit. Compare Pavlovski v. Klassing, 134 Ga. 704 (3) (68 S.E. 511); Smith v. Burrus, 139 Ga. 10 (76 S.E. 362); Copelan v. Monfort, 153 Ga. 558 (113 S.E. 514); Cleaveland v. LaGrange Banking Trust Co., 187 Ga. 65 (200 S.E. 137).

2. "Equity will specifically enforce a parol agreement entered into between two persons, by the terms of which one is to perform certain services during the lifetime of the other, and the latter is to convey certain land at or before his death in consideration of such services, if the contract be definite and specific, based upon a full or partial performance of consideration in the way of services performed on the one side and a failure or refusal to perform on the other, and the proof of such contract be clear, strong, and satisfactory." Bird v. Trapnell, 149 Ga. 767 (102 S.E. 131).

3. Fairly construed, the petition to the effect that the plaintiff's intestate would "give" to defendant the former's interest in the land, provided the defendant would do certain things, and the evidence in support thereof, carried with it the meaning that a deed would be executed upon the completion of his part of the contract or at least within a reasonable time thereafter. Whitehead v. Dillard, 178 Ga. 714, 718 (174 S.E. 244).

4. In view of the pleadings and the evidence it was not erroneous to give in charge to the jury the following: "I charge you that if you should find that the contract was made, as contended by the defendant, the fact that Mrs. Green continued to live on the property with him would not prevent his possession, if it otherwise measures up to the rules that I call to your attention, from being such possession as would authorize a recovery, if you find that he is otherwise entitled to recover."

5. Upon a review of the evidence, it is adjudged sufficient to support the verdict. The trial judge having approved the verdict, the judgment refusing a new trial is

Affirmed. All the Justices concur.

No. 14105. MAY 27, 1942. On November 12, 1940, C. H. Cowart as administrator of the estate of Mrs. A. T. Green, who died in February, 1940, filed his petition praying that J. W. Green, the defendant, be ejected from certain described lands alleged to belong to the petitioner's intestate. The defendant filed his answer and amendments, setting up an equitable claim to the realty in question, and praying that title thereto be decreed to be in him by reason of a certain oral contract which he had with Mrs. A. T. Green, the terms of which, as he asserted, were that if he would give up his sawmill work and take care of her invalid son, Allen Green, a half-brother of the defendant, as long as he lived, and would look after and care for her until her death, she would give to defendant all of her farm property described in the petition, and in the event Allen predeceased her, she would also give to defendant whatever interest she might inherit from said son; the defendant contending that the terms of this contract were fully complied with and performed by him. The answer narrated in detail the services rendered by the defendant to Allen Green and his mother, the plaintiff's intestate, specifying numerous items of expense incurred and paid by him as carrying out his part of the oral contract in question.

On the trial the plaintiff made a motion to dismiss the defendant's answer and cross-action, which motion, as certified in the bill of exceptions, was as follows: "We are now moving to dismiss the cross-action and the entire answer of the defendant, upon the ground that it alleges a contract the specific performance of which he now seeks, which contract, if made at all, gave the defendant a right of action immediately for the specific performance of the same, and that it has lapsed now for approximately twelve years since right of action accrued, no demand having been shown to have been made upon the decedent in her lifetime. The law presumes that a right of action will be brought within a reasonable time, and twelve years is not a reasonable time within which to bring this action; and therefore the action of the defendant in this case for the specific performance of the contract alleged by him is barred by the statute of limitation. We think we are entitled to an order having the answer dismissed, because it is shown that the cross-action for specific performance has been barred by the statute of limitation. We think it is clear that the answer shows upon its face that the action is barred." This motion was overruled, and exceptions pendente lite were filed. Evidence was introduced by both parties. There was testimony as to making of the contract; to the fact that the property involved was all the property of the intestate; as to its value; as to the full performance by the defendant of his obligations under the contract, to wit, his services and expenses in the performance thereof; as to his possession of the premises, the improvements placed by him on the property, their value, etc. The jury returned a verdict in favor of the defendant. The plaintiff moved for a new trial on the general grounds, and amended the motion by adding a ground which complained of an excerpt from the judge's charge to the jury (headnote 4). The motion was overruled, and the plaintiff excepted.