Coffey v. Cobb

Hill, J.

(After stating the foregoing facts.) This is the second appearance of this case in this court. Coffey v. Cobb, 140 Ga. 661 ( 79 S. E. 568 ). When the ease was here before, in delivering the opinion of the court reversing the judgment of the court below,' Mr. Justice Beck said: “As we have held above, the theory of the' plaintiff, that at the time of her going into possession of certain land pointed out to her by her father in 1907 this possession was taken under such an agreement as would make a parol gift of the land, is untenable in view of the evidence, no certain boundaries or any particular lot of land having been fixed; and moreover, the plaintiff shows by her own evidence that up to the year 1910 she was a mere tenant, paying rent. And we now consider whether or not in the year 1910 such an agreement with reference to the sale and purchase of the land was made by the plaintiff and hex father as would give her a right to a decree of specific performance on the ground that an enforceable parol contract for the sale of the land was made and entered into. Section 4634 of the Civil Code provides: ‘The specific 'performance of a parol contract as to land will be decreed, if the defendant admits the contract, or if it be so far executed by the party seeking relief, and at the instance or by the inducements of the other party, that if the contract be abandoned he “can not be restored to his former position. Full payment alone, accepted by the vendor, or partial payment accompanied with *542 possession, or possession alone with valuable improvements, if clearly proved in each case to be done with reference to the parol contract, will be sufficient part performance to justify a decree.’ Under the terms of the contract made in 1910, according to the evidence of the plaintiff, she was to have the land upon the payment of $50 a year during the lifetime of her father and the payment of the sum of $125 in case he demanded payment of the same. Viewing the evidence in the light of the last sentence of the code section we have quoted, while the plaintiff submitted testimony to show that she was in possession of land which had belonged to her father and which she claimed he had agreed to let her have on the terms last stated, there is no such clear and satisfactory evidence of anything done with reference to the parol contract as to show sufficient part performance to justify the decree sought.” And see bottom of p. 6'68. The amendment to the petition does not allege a parol gift of land with valuable improvements thereon, such as equity will decree the specific performance of, or a contract of sale of- the land; but it sets out a rent contract between the plaintiff and the defendant. From the amendment it clearly appears that the plaintiff went into possession of the land and so remained until 1910 as the tenant of the defendant. It does not appear that any purchase-price had been agreed upon for the land, but on the contrary it appears that the plaintiff was to pay rent in kind until the defendant moved to a near-by town, when the rent was changed to $50.00, which the plaintiff alleged was 8% on the value of the land. We fail to see that the amendment changes the case as made in the original petition, so as to.authorize a specific performance of the contract on the basis of a sale of the land by the defendant to the plaintiff. The amendment alleges, among other things, that the plaintiff was to have the crops grown on the land in controversy, “but was to pay the usual rents during the life of said defendant if he required it,” etc. It does not appear from the amendment what was to become of the land after the death of the defendant, whether it should become the property of the plaintiff, or belong to the estate of the defendant. In the absence of any allegation on the subject, and in view of the other allegations of the amendment, we must assume that it remained the property of the defendant’s estate. If, therefore, the facts alleged in the original petition and the evidence supporting the same did not create a parol gift of land *543 such as would authorize the plaintiff to have specific performance, neither does the amendment to the petition; and this being so, we think the court erred in not sustaining the demurrer to the petition as amended. This ruling being controlling of the case, the errors alleged to have been subsequently committed on the trial need not be considered. Judgment reversed'.

All the Justices concur.