Shropshire v. Brown , 45 Ga. 175 ( 1872 )

Warner, Chief Justice.

This was a bill filed by Mary A. Brown, administratrix of Warren Brown, against the executors of William Brown, deceased, to compel the specific performance of a parol contract for the sale of lot of land number thirty-one, in the twenty-fifth district of Chattooga county, alleged to have been made between the complainant’s intestate, Warren Brown, and the defendant’s testator, William Brown.

On the trial of the case, the jury found a verdict for the complainant, decreeing a specific performance of the alleged contract. A motion was made for a new trial on several grounds; but the principal ground insisted on was that no contract was proved which would entitle the complainant to a decree for a specific performance of it, which motion was overruled and the defendants excepted. The answer to the complainant’s bill denies the alleged parol contract. The testator, William Brown, made his will about ten days before his death, and devised his land, including the lot in controversy, to his wife during her life, and, at her death, to be sold and equally divided between his children named therein, one of whom was his son Warren. The evidence shows that the complainant’s intestate was not in the possession of the lot of land until after his father’s death. It is claimed that his father, in a letter written to Warren (who then lived in Arkansas), on the 28th September, 1857, requesting him to come and see him and expressing the hope that he would come, induced him to sell out there and move back to Georgia, at a sacrifice of $600; but there is not one word in that letter about any contract for the sale of the land to him. It is shown, by the evidence, that he came to his father’s and lived there until his father’s death, and that his father said to Shropshire and others a day or two before his death, “that his son Warren had come here to wait on him in his old age, and spent $600 to come, and he wanted to make him whole, and wanted Shropshire to see that his son Warren have a good title to his lower lot of land — a title they can’t jostle him in.” Kirby .states that Ward, one of the executors of William Brown, in a discussion with him about his defense, said “that he had no doubt some understanding, as is stated in the bill, existed between the old man Brown and his son Warren, but Warren had no writing and his wife and children could not hold it.” This is substantially the evidence in the record to prove the parol contract for the sale of the land by William Brown to his son Warren, which it is sought to have specifically performed. To entitle the complainant to a decree for a specific performance of the alleged parol contract between William Brown and Warren Brown, for the sale of the lot of land, the contract must first be established with reasonable certainty, and the consideration claimed to have been paid or rendered must be clearly proved to have been paid or rendered in pursuance of that contract. The consideration claimed to have been paid by the complainant’s intestate for the lot of land, was the damage and loss of $600, sustained by him in removing from Arkansas to Georgia, to attend to his father’s business. Whether that sum was a full and adequate consideration for the lot of land the record does not inform us, as it contains no evidence of the value of the lot alleged to have been contracted for. The counsel for the defendants requested the Court to charge, he jury, “ that it does not require as much evidence to defeat a specific performance of a contract as it does to rescind a contract executed, and inadequacy of price or consideration may justify the Court and jury in refusing to decree a specific performance.” The Court qualified the request by adding, “If such as to induce the jury to suspect imposition or fraud; when the contract is between father and son, that fact may be considered for what it is worth, in connection with the amount of consideration, and all the other facts and circumstances to enable you to determine whether this contract was fairly and bona fide made and obtained, if made at all.” This qualification of the request by the Court to charge the jury was error, and especially so, in view of the facts of this case, there being no evidence of any fraud or imposition practiced upon the complainant’s intestate. The increased value of land, resulting from the altered condition of our people, admonishes us that the well established principles which govern Courts of equity in decreeing the specific performance of parol contracts for the sale of real estate, ought not to be relaxed. In our judgment the evidence disclosed in this record does not establish such a parol contract for the sale of the lot of land in controversy, as would authorize the Court and jury to decree a specific performance of it, according to the well recognized principles by which Courts of equity are governed and controlled in such cases.

Let the judgment of the Court below be reversed.