33 Ga. 9 | Ga. | 1861
Lyon, J., delivering the opinion.
This was a bill filed by Abner M. Lockett against Need-ham Mims, Thomas N. Mims, and William Holmes, sheriff of Bibb County, for specific performance and injunction. The facts alleged in the bill are, that the complainant intermarried with the daughter of the defendant, Needham Mims, in the year 1849; that at, and previous to, the intermarriage, he, complainant, was engaged as contractor, at work with his hands, on the South Western Railroad, which was a lucra
The bill prayed for a specific performance by the said Needham, whether it be a sale made upon good and valuable consideration, or whether it be a gift, and that said Need-ham execute to complainant a proper warrantee deed for said lands, and that the sheriff’s sale and deed for the premises be declared null and void, and the deed surrendered to be cancelled; that all the defendants be restrained by injunction from disturbing complainant’s possession of the land.
The answer of the defendant, Needham Mims, admits that at the time of the marriage, complainant was engaged in business on the South Western Railroad, and that he desired complainant to settle near him, that he and his wife, in their old age, might enjoy the society of complainant’s wife — -their only daughter, for whom it was defendant’s wish to provide as amply and comfortably as the condition of his estate at his death, after the payment of debts and justice to his other children, would permit, not anticipating that the lands claimed by complainant would be needed to pay his debts, and with the intention and desire to have his daughter near to him, and in fact intending at his death to give her a settlement of land near where he now lives, if at that time the condition of his estate would enable him to do so. That he did request the complainant to settle on the land claimed by him; and that he, complainant, did enter into the possession of them with his consent, and at his request, except fifty acres, of which he never had the possession; and that in conversation with complainant the defendant did say to him, that he intended these lands for his daughter. That before
■ Defendant, in his answer, sets up and insists on the statute of frauds as a bar to.performance, and that he did point out the land for levy and sale, in satisfaction of the execution in favór of William Lockett, and that he persuaded his son, Thomas N., to buy the land, and furnished him with $3,500 of the money paid for it at the sale, and took said Thomas’ note for said amount, which he now holds; that complainant gave notice of his claim. ,
The defendant, Thomas N., by his answer, denies all knowledge of a gift or of any title or interest of complainant in the land ;']that complainant did give notice at the sale, of his claim to the land ; that he purchased the land bonafide for his own use and benefit, and that he sold his own land to raise money to enable him to buj»- the land ; that he did bid,$4,000, and raised this bid to $6,000, so as to pay off the execution, and thus to prevent the sale of other lands of his father that was advertised at the same time, and that he 'did so at the request of his father, from whom he borrowed $3,500 of the money to enable him to make the payment, etc.
On the trial, the complainant introduced Albert Horne as a witness, who testified that he knew the lands in dispute; was on -it as overseer for Lockett and Mims, in 1850, and had not seen it since; heard Mims say he had given the lands to Lockett, and that he intended to do better by his daughter (Lockett’s wife,) than any other of his children. This was the first year after Lockett’s marriage. Heard Mims say this often. Heard him say at the spring that Lockett had built a dwelling house on the land. When I went to see Mims at his
Samuel B. Hunter, another witness for complainant, said that Lockett was married in 1849. He and his brother were engaged in railroad business on the South Western Railroad. Railroad business was profitable. Lockett came up the year after his marriage and lived the first year with Mims, and in the Spring of 1851 left Mims’ and moved on to the land in dispute, and has lived there ever since — -about three or four hundred yards from Mims’. Lockett, since his marriage, put up on the land a gin house and screw, two cribs, four or five negro houses, a stable, and a dwelling house, cleared about one hundred acres of land, built lots and made other improvements, worth in the aggregate about $1,900. Lockett used these premises as other neighbors occupied and used theirs. Never heard to the contrary that Lockett owned the land until this suit. The place was worth $10 00 or $12 00 an acre, and there was between six and seven hundred acres.
Cross-Examined — Said he did not know what buildings before or what after the marriage; thinks there were some small improvements on the place before the marriage. He derived his knowledge from knowing the place; cannot swear that Lockett put any house on the place except the gin house; never saw any body put the other houses there. The gin house is framed and shingled, and weather-boarded up; there is a screw there; gin house alone is worth $400 00.
While this witness was under cross-examination, counsel for defendant proposed the following question : “ What was the value of the rent of the lands and the use and occupation of the premises so testified to have been in the possession of the complainant, per annum, during the time that he, complainant-, has held possession of the same?”
To this question, counsel for complainant objected, and the
To this decision, counsel for defendant excepted, and thereupon consented that a decree might be taken in favor of complainant, and a decree was accordingly rendered by the jury in favor of complainant for the premises in dispute.
The direction given to this case, on the trial in the Court below, relieves it from many of the embarrassing questions that usually arise upon applications for specific performance of- parol agreement in respect to land, and narrows the whole case down- to a single question, that is, conceding all that is claimed by the complainant, in his bill, to be true, that is, that there was such an agreement and that complainant, with reference to that agreement, was admitted to the possession of, and made valuable improvements on, the land, and used and occupied it under that agreement for several years, for the consent to the decree, on the refusal of the Court to allow the question to be answered, conceded so much and dispensed 'With any proof in support of the bill. Whether the complainant is not concluded by the statute of frauds if the advantages or benefits recéived or realized by him during the time, from the rents, issues and profits equal or exceed the value of the improvements put on the land by him ? The affirmative of that proposition is maintained by counsel for plaintiff in error, who rest their case on the argument that if it be true that the complainant has been fully compensated for all loss and damage he has sustained by his possession, labor and improvements made and expenses incurred on the land, in faith of this agreement by the use of the land, there can be no authority or reason for a departure from the statute, but that the statute must obtain in it and all cases, except
As strong and plausible as this view appears, we cannot adopt or enforce it. The general, in fact, the universal rule is, that Courts of Equity will decree a specific performance of a parol agreement in respect to land, (except, of course, in those Courts or places, such as North Carolina, where part jierformance will not take the case out of the statute,) where the purchaser or donee has been admitted to the posses fion, and made valuable improvements on the faith of and under the agreement, and when these facts appear there is. not ail exception to the rule. Compensation is never allowed' in these cases to excuse the performance, whether in money or other thing, because the party has so far executed his part of the agreement as to entitle him to an execution, and compensation in lieu of that, is not what he contracted to have. All the Courts require is proof of the agreement, and that it has been so far partly executed as to let the purchaser into the possession under it, and that he has made valuable improvements on the land, and a performance will be decreed. To allow parties, in avoidance of this rule, to go farther and inquire whether injury has in fact resulted, or whether the corresponding benefits already received have not fully compensated for the change of possession and improvements, in order to bring the case back within the operation of the statute, would be to inaugurate an entirely new rule on this subject, and add greatly to the complication of this already embarrassing question, and would be wholly changing the rights of the party under the agreement. Such an inquiry would ahvays arise in those cases where a bare possession is relied upon to take the case out of the statute, and that has always been held to be sufficient for that purpose, yet the inquiry never has been gone into, or if so, has universally been disallowed by the Courts.’ The question of compensation in lieu of specific performance has been considered, and while the Court of Equity has regretted, when it was practicable, that it had not been adopted, rather than that of specific performance, (Foster vs. Hale, 3 Vesey, 696,) yet
There is another reason that occurs to me as entitled to much consideration, in opposition to the principle insisted upon here, though I have not seen it in the books — that is, when a party has placed himself in a position to ask for a specific performance, either by possession or improvement, the thing, that is, the land, is his, or at least he is entitled to a conveyance, a specific performance, at that time, and the rents, profits, issues or benefits accruing to him from its use and occupation from that timo are his, and not that of the vendor or donor; and when ho is asked or required to appropriate these things or benefits in compensation for his labor, improvements and expenses, he is asked or required to compensate himself with that which is his own, and for which he is supposed to have entered into the agreement.
Let the judgment be affirmed.