Moore v. Segars, 14 S.E.2d 752

14 S.E.2d 752 | Ga. | 1941

1. "Specific performance will not be decreed of a voluntary agreement or merely gratuitous promise. If, however, possession of lands has been given under such agreement, upon a meritorious consideration, and valuable improvements made upon the faith thereof, equity will decree the performance of the agreement." Code, § 37-804. In this suit by two persons against two others, all being sisters, in which the plaintiffs sought a decree of title in their favor as to described land on the basis of a parol gift of the land by their mother, whose will as subsequently probated devised the land to the defendants, held, that the plaintiffs did not allege sufficient facts to authorize enforcement of the agreement, under the foregoing principle.

2. "The exclusive possession by a child of lands belonging originally to the father, without payment of rent, for the space of seven years, shall create conclusive presumption of a gift, and convey title to the child, unless there shall be evidence of a loan, or of a claim of dominion by the father acknowledged by the child, or of a disclaimer of title by the child." Code, § 48-106. Whether the petition was sufficient to show exclusive possession by the plaintiffs for any period of time, it was insufficient to show a presumptive gift, because it contained nothing to indicate when the mother died, and consequently did not show possession for the requisite period of seven years during the lifetime of their mother, the donor.

3. No one can be an heir of a living person; and before the death of the ancestor, an expectant heir has no interest or estate in property which he may subsequently inherit.

(a) As against prospective heirs and distributees, a person generally has the right to dispose of his property as he sees fit; and so in this case when the mother died leaving a will in which all of this property was bequeathed to the defendants, she virtually withdrew the alleged oral agreement, and it can not now be enforced by the plaintiffs against the devisees, unless on some principle that would have made the agreement binding against the mother before her death.

(b) The petition did not allege enough to show that such parol agreement ever ripened into a completed gift enforceable as against the mother.

4. Under the allegations of the petition, the oral agreement on which the plaintiffs rely appears to have been a voluntary one as to each of the parties assenting thereto, including the defendants; and since it does not appear that it ripened into a completed gift before the death of the mother, the defendants were not estopped to claim the land as devisees under their mother's will, and as such devisees they had the right to assert such claim.

No. 13645. MAY 16, 1941. Mrs. J. S. Moore and Mrs. Ernest Dameron filed a suit in equity against Miss Love Segars and Mrs. Georgia Segars Stancil, making substantially the following allegations: The plaintiffs and the defendants are sisters, and all of them are daughters of Mr. and Mrs. S. A. Segars, late of Jackson County, deceased. (The plaintiffs and the defendants had six brothers, the names of whom are stated in the petition, but the brothers were not made parties defendant, and are apparently not concerned in this litigation.) The plaintiffs averred that as the sons of Mr. and Mrs. Segars became of age or married they were respectively deeded tracts of land by their parents, although the title to such lands when purchased by their parents had been taken in the name of their mother. On September 6, 1919, the mother of the plaintiffs and the defendants, after she had conveyed to each of her sons a tract of land, made a will "deeding or willing all of her property to the defendants." The plaintiffs knew nothing of this will until just a short time before the death of their mother. (A copy of the will was attached to the petition as an exhibit. There is no allegation that the will was ever probated, but it is declared in one of the briefs filed for the plaintiffs that "It was probated; no presumption about it.") During the fall of 1925, Mrs. S. A. Segars "sent for the plaintiffs . . and called in the defendants," and stated to them that the time had come for her to "give" to each of them a tract of land "as she had given to her sons;" that she asked if it would be satisfactory to them to divide the Anglin place among them. Plaintiffs and defendants all informed their mother that this would be satisfactory. After thus agreeing to accept the lands and "after their mother had stated that she had given" the lands to them, it was agreed by both plaintiffs and defendants to employ T. T. Stapler "to survey out the lands into four tracts of equal value." After surveying for about a half day, the surveyor took sick and had to be carried home. "Plaintiffs aver that the lands given to them and the defendants at that time by their mother, which were to be divided among them, and the lands they employed Mr. Stapler to survey as their joint property, is described as follows:" (description stated.) "Soon after the above tract of land was given to them and the defendants jointly, plaintiff Mrs. J. S. Moore became sick, her mind was so bad she was adjudged insane and confined to the State Sanitorium; and there being no one else to look after her interest in a division, no more efforts were made to divide the land until the spring of 1932, at which time C. B. Chandler was employed, and after some delay Mr. Chandler died. Yet before he died he surveyed two tracts of thirty-three acres each off each side of the above tract as being of one-fourth value of the whole, and on October 4, 1935, Mrs. S. A. Segars executed to defendants a warranty deed to their respective parts of the lands above described in terms of the gift of the lands as above set forth, leaving fifty acres of said tract, adjoining the two tracts of defendants and being between the two tracts, for plaintiffs. That tract of the original tract left to plaintiffs being bounded as follows:" (giving boundaries). Copies of the deeds were attached to the petition as exhibits.

"The deeds to their one-fourth interest [each] was accepted by the defendants as their sole interest in the lands; at the time they accepted their deeds Miss Love Segars was in possession of the will above set forth, and knew its contents, and both defendants accepted said deeds with full knowledge of the will, with full knowledge of their agreement with plaintiffs and their mother, made in 1925; that so much of said will which gave the Anglin lands to defendants had been revoked and annulled, and the will was not to refer to nor operate as to said Anglin tract as above described, but that the fifty acres left was to belong and did belong to plaintiffs, and on her dying bed [the mother] requested that plaintiffs be not interfered with in their use of said remaining fifty acres of land. After accepting the lands plaintiffs permitted and allowed defendants to look after the lands for all of them, and to take the rents and improve the lands, and after paying the taxes the balance of the income was applied to recovering the house, building barns, ditching the land to prevent erosion; and because Mr. and Mrs. Segars were too old to work plaintiffs allowed the balance of the income, after paying for the upkeep and improvements aforesaid, to be given to their mother and father. . . Plaintiffs aver, that no attack is meant to be made upon the will as such; that besides the above-described tract Mrs. S. A. Segars owned other valuable property . . conveyed under the will, and for this reason the nominal $5 paid to all heirs under the will need not be tendered by plaintiffs; however, plaintiffs tendered into court said $5 that each obtained, one $5 being in cash and the other $5 being the original check sent out, same not having been cashed. . . As to rights defendants obtained by will to the other property, same is recognized by plaintiffs as valid. . . That Mrs. S. A. Segars had a right to give away the lands above described; that the acceptance of said lands as their portion constituted a completed gift, and [by] acceptance of deeds attached hereto . . constituting defendants' interest in the land given [they] are now estopped from claiming that portion given to plaintiffs by claiming it under the will, which the deeds themselves show to have been revoked and annulled by the testatrix. . . That one of the defendants, Mrs. Georgia Segars Stancil, stated, while her mother lay a corpse, for them not to worry, that she would not interfere with their ownership of the land which their mother had given them [the plaintiffs] even though no deed had ever been drawn, because she knew the will also conveyed the land, but that she knew that so much of the land as above described had always been considered the property of the girls since 1925, when it was agreed that said lands should be divided among them and when said gift was accepted as their portion of their mother's estate. . . That notwithstanding the lands being given as aforesaid, and the acceptance by the defendants of deeds covering all interest that they had in and to said lands, they have seized said property and claiming it under the will of Mrs. S. A. Segars, and are holding it out as their lands, and now advertising same as their lands for sale, to the exclusion of plaintiffs' rights, who are sole owners of said lands. . . That the deeds attached show on their face that they are deeds of gift by Mrs. Segars to defendants, and not deeds of sale; that they show on their face to have been made after the will, which also gives said property, the deeds show on their face to be repugnant to the will, that the deeds show on their face that the testatrix did not mean to convey all the lands to defendants as shown by the will, and in so far as they show a change of mind from the will they of themselves revoke and annul said will in so far as this particular property is concerned." Plaintiffs have no adequate remedy at law. The substantial prayers of the petition were as follows: (1) That defendants be enjoined from interfering with the plaintiffs' rights to possess the lands described. (2) That defendants be enjoined from advertising said lands as their lands, and a decree of the court be rendered confirming said gift and decreeing the lands to belong to plaintiffs in terms of the gift.

The foregoing statement has been made from the petition as amended. The court sustained a general demurrer filed jointly by the defendants, and dismissed the action. The plaintiffs excepted. 1. The prayers of the petition were that the defendants, who were sisters of the plaintiffs, be enjoined from interfering with the right of the plaintiffs to possess the lands in question, and from advertising them as the property of the defendants, and for a "decree of court . . confirming said gift and decreeing the lands to belong to plaintiffs in terms of the gift" from the plaintiffs' mother. As to such gift, the petition alleged in effect that in the year 1925 their mother, after executing deeds conveying various tracts to her sons, and after executing a will devising all of her property to her husband for life, with remainder to her two single daughters, now the defendants, agreed with the plaintiffs and the defendants to give to them jointly a described tract of land to be divided among them. Afterwards two tracts were surveyed out as the respective shares of the defendants, leaving a described remainder as the property of the plaintiffs. In accordance with such survey, deeds were executed and delivered by the mother to the defendants, conveying their shares. There was no conveyance or other writing by the mother to the plaintiffs. Defendants have seized the tract claimed by the plaintiffs and are now advertising it for sale as their land, to the exclusion of the plaintiffs, the claim of the defendants being based on the will of their mother. On a proper construction of the petition, there being no allegation to the contrary, it must be assumed that the will was duly probated. This accords with the construction placed upon the petition by counsel for the plaintiffs, who declares in one of the briefs filed in their behalf that the will was probated.

"Specific performance will not be decreed of a voluntary agreement or merely gratuitous promise. If, however, possession of lands has been given under such agreement, upon a meritorious consideration, and valuable improvements made upon the faith thereof, equity will decree the performance of the agreement." Code, § 37-804. Even if the petition might be construed as showing possession by the plaintiffs, there are no allegations to the effect that valuable improvements were made on faith of the gift. It is true that the plaintiffs alleged that "after accepting the lands plaintiffs permitted and allowed defendants to look after the lands for all of them, and to take the rents and improve the lands, and after paying the taxes the balance of the income was applied to recovering the house, building barns, ditching the land so as to prevent erosion, and because Mr. and Mrs. S. A. Segars were too old to work plaintiffs allowed the balance of the income, after paying for the upkeep and improvements aforesaid, to be given to their mother and father Mr. and Mrs. S. A. Segars." But even so, there is nothing here to show that any improvements were made by the plaintiffs, within the meaning of the law as quoted above, it appearing that they made no expenditure for that purpose, and that such improvements as may have been made were derived solely from rents received for these very lands. Mims v. Lockett,33 Ga. 9, 19; Beall v. Clark, 71 Ga. 818 (3-c), 852; SwanOil Co. v. Linder, 123 Ga. 550 (51 S.E. 622); Hodgson v.Hodgson, 28 Ga. App. 250 (110 S.E. 754). Furthermore, the petition does not show when the mother died, and consequently it does not appear whether any improvements, from whatever source, were made during her lifetime. This omission alone would be fatal to the plaintiffs on the question of improvements and completed gift. Kerr v. Kerr, 183 Ga. 573 (3 a) (189 S.E. 20).

2. Nor can the petition be sustained under the principle that "The exclusive possession by a child of lands belonging originally to the father, without payment of rent, for the space of seven years, shall create conclusive presumption of a gift, and convey title to the child, unless there shall be evidence of a loan, or of a claim of dominion by the father acknowledged by the child, or of a disclaimer of title by the child." Code, § 48-106. Even if the petition could be construed as showing exclusive possession by the plaintiffs, with the other essentials except that relating to time, it is still insufficient to show a presumptive gift, because it does not appear when the mother died. To make a case of presumptive gift under the principle last quoted, "it is necessary to show that the exclusive possession of the child, without payment of rent, shall have continued seven years during the lifetime" of the donor; otherwise the presumption does not exist. McKee v. McKee, 48 Ga. 332;Jones v. Clark, 59 Ga. 136. "A parol gift of land, without more, is ineffectual to pass title to the donee." Thaggard v.Crawford, 112 Ga. 326 (2) (37 S.E. 367); Beetles v.Steadham, 186 Ga. 110, 112 (197 S.E. 270). By the foregoing reference to section 48-106 we do not decide whether this section would apply to a gift by a mother, that question not having been raised in this case.

3. It is contended, however, that the alleged agreement amounted to a contract to which the mother and the plaintiffs and the defendants were all parties, the mother being the party of the first part and the plaintiffs and the defendants being parties of the second part; that it constituted a settlement with respect to the plaintiffs' inheritance, and "when it is admitted that the plaintiffs accepted the land in question as their inheritance, then and there a contract was made and completed with all conditions performed," and that only the mother or a legal representative of her estate should be heard to object to its enforcement. It is further urged that "We have a settlement based upon a valid consideration," and that since the defendants have received the "portion going to them," they can not repudiate the agreement or rely upon the statute of frauds. We can not sustain any of these contentions. No one can be an heir of a living person, and before the death of the ancestor an expectant heir has no interest or estate in property which he may subsequently inherit. 18 C. J. 862, § 111. As against prospective heirs and distributees, a person generally has the right to dispose of his property as he sees fit; and so in this case when the mother died leaving a will in which all of this property was bequeathed to the defendants, she virtually withdrew the alleged oral agreement, and it can not now be enforced by the plaintiffs against the devisees, unless on some principle that would have made the agreement binding against the mother before her death. 18 C. J. 864, § 113. The will is to be taken as speaking from the time of the death of the testatrix. Code, § 113-105. Her death of course occurred after the oral agreement alleged to have been made by her in 1925, and also after her alleged deathbed declaration. Therefore the will takes precedence over both, unless the agreement had become binding as a completed gift during her lifetime. The plaintiffs do not allege sufficient facts to bring themselves within any of the foregoing principles relating to parol gifts from parent to child, and none other has been cited to us as being applicable.

4. We can not assent to the view that there was anything in the nature of a contract based upon a valuable consideration. The plaintiffs in their petition repeatedly refer to the transaction as a parol gift, and rightly so; for, as we have stated above, they had at that time no inheritance or right to an inheritance which could be the subject-matter of bargain and sale between the parties. Nor did the defendants have any such interest in their mother's estate. Accordingly, the whole transaction was a voluntary one, and was such as to every party assenting thereto. There were no rights to be adjusted by a "settlement agreement." See Wright v. Wright, 99 Ga. 324 (25 S.E. 673); Trammell v. Inman, 115 Ga. 874 (3) (42 S.E. 216); Dailey v.Springfield, 144 Ga. 395 (87 S.E. 479, Ann. Cas. 1917D, 943); Pidcock v. Reid, 145 Ga. 103 (88 S.E. 564); Johnson v. Robinson, 172 Ga. 746, 757 (158 S.E. 752). Even where a mother made a deed conveying land to one of her children, it was held that the child had no right to have a mistake in the deed corrected, the deed being voluntary. Powell v. Powell, 27 Ga. 36 (73 Am. D. 724). Nor will a voluntary agreement between parent and child, which has not ripened into a completed gift, be enforced at the instance of the child and against other children as heirs after the parent's death.Prater v. Sears, 77 Ga. 28 (1 a). On principle the same rule would apply in favor of the defendants as legatees. So the defendants here could assert title to these lands under the will of their mother, by which all of her real estate was devised to them, subject only to a life-estate in favor of their father, who, as the petition shows, was dead at the time the suit was filed. As indicated above, the will was not revoked or in any manner changed, either by the parol agreement of 1925, or by the declaration of the mother on her deathbed. Compare Coffee v.Coffee, 119 Ga. 533 (46 S.E. 620); Curtis v. Moss,189 Ga. 165 (2) (5 S.E.2d 654). Nor is the case altered by the subsequent verbal assurance by one of the defendants. If the testatrix while in life had made an oral gift of these lands and such gift had become complete before her death, the estate left by her would not have included the tract in controversy, and the defendants as devisees would have acquired no title in virtue of the will. On the contrary, the plaintiffs as donees would have had title. See, in this connection, Sikes v. Seckinger,164 Ga. 96 (137 S.E. 833). This, however, is not the case presented by the petition.

Although the plaintiffs may show that from a moral or ethical standpoint they have been badly treated by their sisters, still they do not show that they have parted with anything in favor of their sisters, or that there is other reason in law or in equity why the latter as devisees can not rely upon the will as showing title in them from their mother, to the exclusion of the plaintiffs. The court did not err in sustaining the general demurrer and dismissing the action.

Judgment affirmed. All the Justices concur.