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
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
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.
The court did not err in any of the other rulings complained of. Judgment reversed.
specially concurring. I agree in the result reached, and to all that is said in the headnotes, except that I dissent from the rulings in the 2d and 3d headnotes. Proof of a parol agreement for the sale of lands must “be made out so clearly, strongly, and satisfactorily as to leave no reasonable doubt as to the agreement/5 “It is a serious matter to substitute a parol sale of real estate for a deed." Printup v. Mitchell, 17 Ga. 558, 567 (63 Am. D. 258). See also Tidwell v. Garrick, 149 Ga. 291 (2a) (99 S. E. 872).