179 Ga. 18 | Ga. | 1934
Norton I. Steinberg died intestate, seized of certain real estate. He was survived by his widow, now Mrs. Debbie Shapiro, and two sons, Charles and David A. Upon consideration of $1, love and affection, and the recital that the father had during his life provided liberally for them, the two sons conveyed to their mother all their right, title, and interest in the property belonging to the estate of their father. The mother assumed a mortgage on one parcel of the real estate, in the discharge of which she afterward paid $3000. The two sons instituted suit against the mother, alleging, among other things, that the conveyance by them to their mother was made upon the oral agreement that in the event the mother should marry again she would thereupon convey to each of the sons a third interest in the property, and that they might each occupy a portion of the property during her life; that she had married again, was undertaking to oust them from the portions of the property occupied by them, and had refused to perform the oral agreement to convey to each of them a third interest in the property. They prayed for a decree awarding the same to them. The petition described three parcels of realty, two located in Fulton County, Georgia, and another located in the State of Alabama. By their verdict the jury found “that the plaintiffs are entitled to a decree of specific performance of the contract; that is, that the defendant convey to each of them an undivided one-third interest in
Besides the general grounds, the motion- contains ten special grounds.
Grounds 1, 2, 3, 4, 5, and 7 complain of the admission of testimony to the effect that the mother agreed orally to convey back to the sons a one-third interest in the property in the event she should marry again, over objection that the same was an attempt to vary, contradict, and add new terms and conditions to the deeds referred to. Ground 6 complains of the refusal to admit testimony which counsel for defendant stated to the court he expected .a witness for plaintiffs to give in response to questions on cross-examination, to the effect that a recital contained in the deed from the sons to the mother that their father had during his lifetime provided liberally for them “was a true statement of fact, and would show the real reason and circumstances why the boys did make the deed to their mother,” the court having excluded the testimony as irrelevant. Ground 8 complains that the court refused to permit the defendant to testify to what her husband said at the time of his death, her counsel having advised the court that he expected the testimony to be that the husband had stated to the petitioners that he wished all of his property to go to the defendant. Grounds 9 and 10 complain that the court refused to permit the defendant to testify that her husband was wealthy, and that the husband and mother had supported the sons, as irrelevant. The petitioners, a brother-in-law, and a nephew of the defendant testified that the defendant agreed orally, at the time of the execution of the deeds by the sons, that in the event she should marry again she would convey to each of them a one-third interest in the property. The mother testified that she did not make such agreement.
The case was previously before this court. Shaprio v. Steinberg, 175 Ga. 869 (166 S. E. 767). The question then was whether the court erred in overruling the general demurrer to the petition. The questions then involved are shown in the headnotes, as follows: “1. The plaintiffs alleged that they had executed a deed .to their
The Civil Code (1910), § 4179, provides: “A deed to lands in this State must be in writing, signed by the maker, attested by at least two witnesses, and delivered to the purchaser, or some one for him, and be made on a valuable or good consideration. The consideration of a deed may always be inquired into when the principles of justice require it(Italics ours.) Since it did not appear from the petition that any consideration was recited in the deed, under the express terms of the code just quoted the consideration could be inquired into by parol evidence “when the principles of justice require it.” In Coldwell Co. v. Cowart, 138 Ga. 233, 236 (73 S. E. 425), the court said: “The recital in a deed of the receipt of the purchase-money does not estop the maker from denying the fact and proving the contrary. Civil Code (1910), § 4188. ‘Recitals in deeds, except payment of purchase-money, as against the grantor’ and his privies, generally work an estoppel. § 5736. The consideration of a deed may always be inquired into when the principles of justice require it. § 4179. Ordinarily where the statement in a deed as to a consideration is merely by way of recital, the actual consideration of the deed is subject to explanation. But if the consideration is referred to in the deed in such a way as to make it one of the terms or conditions of the contract, it can not be varied by parol. This statement, in connection with the rule against permitting the terms of a written contract to be changed by parol, will serve to reconcile a number of rulings where evidence has been admitted to show what was the consideration of the deed or contract with others in which it has been rejected. . . Under the guise of inquiring into the consideration of a deed, it is not competent by parol evidence to change the terms of the deed, or add new terms thereto.” As illustrating the two classes a number of cases were there cited, which need not be repeated here. In addition to what was said in the Coldwell case it must be remembered that there is another well-recognized rule; that is, where the consideration is not stated in a deed, parol evidence may be received to prove it. Under these rules the case was decided on demurrer.
The trial court felt bound by the former decision, and allowed parol evidence offered by the plaintiffs to prove a parol agreement to reconvey two-third interests in the property to the petitioners under the stated condition. The court refused to allow the defendant mother to introduce evidence tending to establish her contention that the consideration of the deeds was love and affection, the liberal provision made by the father in his lifetime to the petitioners, and, in addition, the expressed wishes of the father shortly before his death that the defendant mother should have all of his property. A verdict for the petitioners naturally followed. It follows from what we have said above that the court erred in admitting the parol evidence of the sons, and in refusing to grant a new trial. In this view it is not necessary to deal with the complaint that the court rejected defendant’s evidence offered to prove her own contentions.
Judgment reversed.