Hale v. Lipham , 61 Ga. App. 191 ( 1939 )

This is an action to recover from the defendant the sum of $500, the purchase-price of certain land of which the defendant is in possession, but to which the plaintiff claims title on the ground that a deed which he had executed to a third party was obtained by fraud. The petition in effect alleges that the defendant came into possession of this land under a deed, the grantor of which had no title, and that the defendant had actual notice at the time he took said deed that the plaintiff had a superior title thereto; that the plaintiff promised the defendant that if the defendant would pay him $500 he would forego his title to said land as against the seller from whom the defendant was buying; that the defendant agreed to pay plaintiff the $500 but now refuses so to do. The consideration of the agreement sued on as alleged in the petition is the purchase-price of the land. Code, § 20-401 (4), provides that any contract for the sale of lands must be in writing. An exception to this rule is stated in Code, § 20-402 (3), which provides: "Where there has been such part performance of the contract as would render it a fraud of the party refusing to comply, if the court did not compel a performance."

It is not alleged that the plaintiff has done anything other than that he has promised, if the defendant would pay $500, he would forego his title to the land. It is not alleged that the plaintiff had lost any of his rights, or has been placed in a less favorable position because of the agreement, or that he may not now sue for the recovery of the land, or have set aside and canceled the alleged fraudulent deed he had made to Freeman.Harper v. Gorley, 128 Ga. 444 (57 S.E. 695); ProtestantEpiscopal Church v. Lowe Company, 131 Ga. 666, 688 (63 S.E. 136, 127 Am. St. R. 243). There was therefore absolutely no consideration for his promise to forbear bringing suit against Freeman to cancel the deed, or may he now be prevented from bringing ejectment against the defendant in this case. It is true that had the agreement been executed by a payment of the money the plaintiff would have been estopped from bringing any action against the defendant for a recovery of the land. The fact that the plaintiff may have been so estopped does not itself create a contract between the plaintiff and the defendant. Contracts are not created by estoppel. If, as alleged in the petition, the action is to recover $500 as the purchase-price of the land, the plaintiff is prevented by the statute of frauds from enforcing a contract which is required to be in writing. If, as is also alleged in the petition, the consideration was a forbearance to sue and assert title to the land, which agreement was made before the defendant took the deed from Freeman, and in consideration of his promise to forego such title defendant was to pay plaintiff $500, I think the agreement sought to be enforced is one respecting an interest in land and is within the statute.

Under the allegations of the petition there were no differences between the plaintiff and the defendant to compromise or settle, and the law with respect to compromises has no application here, under the facts alleged. Under the allegations of the petition the defendant was seeking to buy a piece of land. The value of the land was alleged to be $1000. The defendant verbally agreed to pay to two parties, each of whom claimed an interest in the land, $500. He paid $500 to one of the parties and took a warranty deed and possession from him. He afterwards refused to pay the other alleged owner. The verbal contract alleged to have been made was in respect to an interest in land and to be enforceable, without more, must have been in writing.

The court erred in overruling the defendant's demurrer to the petition.