167 Ga. 386 | Ga. | 1928
Fleming Williams et al., children of Mattie Williams Scott, filed a petition against Henry Scott, their stepfather, and alleged that the defendant was in possession of a described tract of land under a purchase in conjunction with petitioners and their mother at an administrator’s sale on October 10, 1924; that at the time of. said purchase it was agreed that the defendant and
The evidence was indefinite as to what amounts were paid by the respective petitioners, and there was no clear evidence that some of them paid anything. One of the petitioners testified that her brothers gave the mother $25 that witness knew of, that the
The jury rendered a verdict for the plaintiffs. The defendant moved for a new trial. The motion was overruled, and he excepted.
Headnotes 1 and 2 do not require elaboration.
The defendant is in possession of the land in question as grantee under a deed. The plaintiffs are undertaking to set up a parol contract for the purchase of the land, under which they would be entitled to undivided interests therein. Under the Civil Code (1910); § 3222 (4), all contracts for the purchase of land must be in writing. There are some exceptions, such as where the purchase-price has been paid. In Wyche v. Green, 11 Ga. 171 (4), it was said: “As to the degree or quantum of proof that will be required, before relief will be granted against written instruments, the rule is not laid down with inflexible uniformity.” In that case the English rule was stated, and it was declared that the language thereof “has been considered too strong;” but it was further said that such a case “should be clearly made out by proofs which are satisfactory.” In Printup v. Mitchell, 17 Ga. 558, 567 (63 Am. D. 258), it was said: “A parol contract for land, like the reformation of a deed by parol proof, should be made out so clearly, strongly, and satisfactorily as to leave no reasonable doubt as to the agreement. It is a serious matter to substitute a parol sale of real estate for a deed.” This question has recurred from time to time, and in one or more cases it has been remarked that the phrase “reasonable doubt” has application to criminal and not civil cases; but in all of the decisions the rule has been clearly recog
Thus measured, the evidence in this case is insufficient. It is not so clear and satisfactory as to afford a basis for the jury’s finding. No clear and precise contract is established by the evidence; and the evidence as-to the precise amounts paid by the several petitioners is not so clear or satisfactory as to authorize the verdict found, upon the principles of an implied trust. The evidence with respect to payments by the wife fails to show that such payments were made from her separate estate, or that the husband either contracted to pay her for laboring with him or made a gift to her of a portion of his crop on the farm. It was not shown that the money actually turned over to Anderson was a payment by the wife in her own behalf or in behalf of her husband. In such circumstances the evidence failed to show a definite interest either under a parol contract or as an implied trust. “Where a husband buys land and takes title in his own name, the wife can not in equity establish an implied trust and recover an undivided interest in such land by showing that a portion of the purchase-price was paid from the fruits of her labor. She must show that some definite portion of the purchase-price was paid by her from her separate estate. Mitchell v. Rawls, 130 Ga. 608 (61 S. E. 475); Mock v. Neffler, 148 Ga. 25 (3), 27 (95 S. E. 673);" Lane v. Lane, 149 Ga. 581 (101 S. E. 582). Moreover, Anderson was not the vendor of the land. He was merely the lender of money with which to pay the purchase-price. Therefore the petitioners are not entitled to a decree setting up title in themselves to undivided interests in the land. Judgment reversed.