Christopher v. Mooty , 155 Ga. 286 ( 1923 )

Hines, J.

Exception is taken to this instruction to the jury: “That, if it does not appear from the evidence that R. L. Christopher Sr. conveyed the land .in dispute to Mrs. Tyner or her predecessor in title, then she would have no title to convey to R. L. Christopher Jr.” The errors alleged are, (1) that this instruction so limited the jury as practically to withdraw from it the real issue; (2) that it placed the burden on the defendant to prove that R. L. Christopher Sr. executed a deed to the property to Mrs. Tyner or her predecessor in title; and (3) that the court assumed that R. L. Christopher Sr. owned the land, which was denied by the defendant. The first two exceptions to this charge are well taken. The plaintiffs alleged that R. L. Christopher Sr. borrowed money from Mrs. Tyner, and executed and delivered to her his deed to secure the same. If the burden-rested upon any one to sustain this allegation by proof, it was upon the plaintiffs, and not upon the defendant. But, under the view we take of the ease, it was not necessary for the defendant to show title in Mrs. Tyner, as both the plaintiffs and the defendant claim under her. Hightower v. Williams, 38 Ga. 597; Wood v. McGuire, 17 Ga. 303; Miller v. Surls, 19 Ga. 331 (65 Am. D. 592); Harrison v. Hatcher, 44 Ga. 638. As this instruction might have confused the jury as to the real issue in this case, it was harmful to the defendant, and necessitates the grant of a new trial.

The defendant insists that the court erred in charging the jury as follows: “ If they [plaintiffs] have shown that such a contract [alleged contract of 1915] as that was made, clearly, strongly, and satisfactorily by the evidence, then you will look to the evidence and see whether or not that contract was executed on the part of the plaintiffs in this case. Did R. L. Christopher Jr. enter into possession of the land in dispute, and receive the rents therefrom for the years 1945 and 1916? If you find such a contract as that was entered into, and that R. L. Christopher Jr. received the rents for those years, according to the terms of the agreement, if you find one was made, then, gentlemen, the contract should be specifically performed? and the plaintiffs in this case would have the right to recover all that land, the entire lot of land in dispute.” The errors alleged are, that (1) a parol contract for land must be proved beyond reasonable doubt; (2) that this instruction is an incorrect statement of the law, because, before the plaintiffs could recover, if at all, the contract between B. L. Christopher Sr. and B. L. Christopher Jr. must be proved beyond a reasonable doubt, and, if this was, not proved, no agreement between the heirs and the intestate of the defendant would be binding, for want of consideration and mutuality. While it might have been more accurate for the court to have instructed the jury that a parol contract for land of which specific performance is sought should be made out so cléarly, strongly, and satisfactorily as to leave no reasonable doubt as to 'the agreement (Gordon v. Spellman, 148 Ga. 394, 96 S. E. 1006; Lloyd v. Redford, 148 Ga. 575, 97 S. E. 523; Allen v. Allen, 151 Ga. 278 (5), 106 S. E. 81), the failure of the court to tell the jury that the proof must leave no reasonable doubt of the contract is not ground for the grant of a new trial, in the absence of a timely request for further instruction. Clear, strong, and satisfactory proof of a parol contract touching land is equivalent to proof of its existence to a reasonable certainty. Warren v. Gay, 123 Ga. 243- (51 S. E. 302); Shropshire v. Brown, 45 Ga. 175. In the last-cited case this court held that “ to entitle a complainant to a decree of specific performance of a parol contract for the sale of'land, the contract must first be established with reasonable certainty.” This disposes of the exception to the charge of the court set out in the eighth ground of the amendment to the defendant’s motion for new trial.

Complaint is made of this instruction of the court to the jury: " Gentlemen, you will make your verdict according to the preponderance of the testimony.” ,The error alleged is that in cases of this kind the parol contract must be proved beyond a reasonable doubt. This instruction was given to the jury after the court had instructed them that the plaintiffs could not recover unless they had established the contract by clear, strong, and satisfactory evidence. Construed in connection with this instruction, we do not think that the charge complained of was erroneous. Gordon v. Spellman, supra.

Plaintiffs insist that under the pleading and evidence a verdict is demanded in favor of themselves. The defendant insists that under the pleading and' evidence a verdict is demanded in her favor. Plaintiffs base their contention on the ground that “ Where a vendor of land takes notes for the purchase-money, securing their payment by reservation of title in himself, which notes he afterwards transfers without recourse and without any transfer-of the reserved title to a third party, this operates as a payment of the purchase-money, the vendee’s equity becomes complete, and the vendor ceases to hold any interest in the land” (Tompkins v. Williams, 19 Ga. 569; Cade v. Jenkins, 88 Ga. 791, 793, 15 S. E. 292; Georgia Mills &c. Co. v. Clarke, 112 Ga. 253, 37 S. E. 414); and that as the vendor of the elder Christopher took notes payable to herself or bearer, which she afterwards transferred to a third person without indorsing them, this had the effect of vesting the title to this land in the elder Christopher, and left no title in the vendor which she could convey to the younger Christopher. The case at bar • does not fall within this ruling, for the reason that the plaintiffs allege in the petition that the younger Christopher advanced to the vendor for his father the balance of the purchase-money 'due upon the land, and took a deed to himself from the vendor, under an agreement between the father and the son that the latter would take a deed from the vendor to secure the money advanced by him in paying the balance due. on the purchase-money, and under this agreement the son was to convey the land to the father as soon as this money so advanced was paid back. Under this state of facts, the conveyance by the vendor to the son was in effect a conveyance by the father to him; and the conveyance from the vendor under these circumstances vested title in the son.

It is insisted by the defendant that a verdict in her behalf was demanded, because the claim of the plaintiffs is a stale demand. We do not think that this is a stale demand.- One of the theories on which plaintiffs sought to recover was that the son held these lands as. security for the payment of money advanced by him for his father to pay off the balance of the purchase-money due Mrs. Tyner, that this money was paid back by the father to the son prior to his death, which occurred on Feb. 25, 1915, that this put title in the father, and that they were entitled to recover five sixths of this land as heirs at law of the father, who always retained possession and died in possession of the land. They further assert that they are entitled to recover this land under a contract between the son and themselves, made after the death of the father, in which he agreed to renounce in their favor all his right to and interest in said land, if he were permitted to receive the rents of said lands for two years thereafter, which agreement was carried out, and under which he received said rents. So clearly, under this statement of facts, the demand of the plaintiffs is not a stale demand. . The defendant further insists that the effort of plaintiffs is to establish by parol an express trust, which could only be created by writing. This position is not well taken. Jenkins v. Lane, 154 Ga. 454 (115 S. E. 126).

The court did not err in any of the other rulings complained of. Judgment reversed.

All the Justices concur.