91 S.E. 869 | S.C. | 1917
Lead Opinion
March 19, 1917. The opinion of the Court was delivered by This is an appeal from a decree of his Honor, Judge Smith, made at the Summer term of the Court, 1916, for Spartanburg county. The decree fully sets out the facts of the case and the points and issue and will be reported. To this decree the defendant excepts, and by 16 exceptions alleges error and asks that the same be reversed.
We think the decree should be reversed, as there was not such an agreement or contract proven as would require the deceased to make a will giving the plaintiff a part of his real estate after his death or such an agreement or contract made between the parties as would justify the Court in decreeing specific performance. The attempt is to enforce an agreement or contract as to real property, and there is not a particle of written evidence in any form to *532 support the contention of the plaintiff, and no claim on her part that there is any such evidence. Her contention is supported by parol testimony alone.
In the case here the testimony of the plaintiff is clearly incompetent to establish any contract with the deceased under section 438 (Code Civ. Proc.), and such a contract is not binding under the statute of frauds unless in writing and signed by the party to be charged therewith. No such contract can be established by parol evidence alone; there must be some writing in the case to take it out of the statute of frauds.
Excluding the evidence of plaintiff under section 438 of the Code and the absence of any written evidence to in any way establish the agreement or contract as contended for by the plaintiff, there is an entire failure to establish the contract, and plaintiff's case fails fully. The alleged contract is void under the statute of frauds, and there is not a single decision of this Court in this class of cases that contemplated abrogating the statute of frauds.
In order to enforce a contract whereby a party contracts to dispose of real estate by will, the same principles apply and the same proof is necessary as when he contracts to convey title by deed. Under all of the evidence in the case and a careful examination of the same and all the circumstances in the case there is no evidence to sustain the finding of the Circuit Court; under the decisions of this Court in McAulay v. McAulay,
Judgment reversed, and complaint dismissed. *533
MESSRS. JUSTICES FRASER and GAGE concur in the opinion of MR. JUSTICE WATTS.
Concurrence Opinion
I concur in the result on the ground that the evidence fails to establish the agreement alleged in the complaint by that measure of proof required by law in such cases. It is not sufficiently clear, definite and certain. Only two witnesses testified to the making of the agreement and its terms. They were the plaintiff and her father, both interested — the one legally; the other morally. Two other witnesses testified to declarations of William Golightly, and they differ from each other. To one he said "he would take the child, and at their (his and his wife's) death the child was to get one-half of the property;" to the other, "if she stayed till his wife died, she would get half that they had." In neither was there any reference to a contract to make a will. He may have merely expressed his intention to provide for the child in his will.
I think the testimony of plaintiff was competent. She did not testify to any transaction or communication between herself and deceased, but only to one between her father and deceased in her presence. Sloan v. Hunter,
I am not prepared to assent to the proposition that in no case will the Court decree performance of a contract to devise land where it rests in parol and is proved only by parol evidence. The decision of that point is not necessary to the decision of this case. But if part performance of a parol contract to convey land will take a case out of the statute of frauds, why would not part performance of a contract to devise land have the same effect?
MR. CHIEF JUSTICE GARY dissents for the reasons stated in the decree of his Honor, the Circuit Judge, which is reported. *534