175 Ga. 258 | Ga. | 1932
In 1899 Henry Rich, twenty-two years old, was living with his mother, Mrs. Susie Rich, and W. A. Rich, his mother’s second husband. Henry owned a mule and wagon of the value of $150. At that time M. B'. Talley owned described land containing 10á acres, on which there was one dwelling, and which could be purchased for $385. W. A. Rich proposed to Henry that they buy the land at the price stated, Henry contributing his mule and wagon at $150, and W. A. Rich paying the balance of $235 in cash, and agreeing to build another dwelling thereon “for Henry to live in,” and that Henry should receive an undivided interest in the land in proportion to the amount of the purchase-price paid by him. Henry accepted the proposition and delivered his mule and wagon to W. A. Rich, who was relied on to complete the negotiations with Talley. The land was purchased and the price paid in manner above stated, but the deed was made to W. A. Rich as sole grantee. Henry did not know the terms of the deed “until long afterwards.” In 1900 Henry, being about to marry, requested W. A. Rich to build the additional house, and subsequently repeated his request several times, but each time was offered an excuse on the ground of inability, until finally in 1903 Henry demanded that W. A. Rich account to him for the
2. The allegations stated a cause of action for specific performance of the second parol contract.
(a.) The second parol agreement was sufficiently definite to import a contract.
(6) The alleged waiver by Henry of his rights of possession and enjoyment as a tenant in common during the lifetime of W. A. Rich was a sufficient allegation of consideration to support the alleged agreement that at the death of W. A. Rich Henry should be absolute owner of a one-half interest in the land.
(c) The allegation as to performance by Henry of the oral agreement mentioned in the next preceding subdivision was sufficient to satisfy the statute of frauds.
(d) The facts that both the contracting parties had died and nearly four years had elapsed between the death of W. A. Rich, the time at which Henry should have a one-half interest in the land, and institution of the suit, do not as matter of law show an equitable bar to the suit by the heirs of Henry for specific performance.
(e) In connection with each of the several rulings above stated see Bird v. Trapnell, 147 Ga. 50 (92 S. E. 872).
3. The fourth ground of demurrer, complaining that the petition is duplicitous because it seeks in one count to recover a one-half interest under the contract and a one-eighth interest under the will was not ruled upon by the trial judge, and no question is for decision based on that ground of the demurrer.
4. The judge erred in dismissing the action on general demurrer.
Judgment reversed.