Opinion
16919.
JANUARY 11, 1950. REHEARING DENIED FEBRUARY 17, 1950.
Complaint for land. Before Judge Edmondson. Hall Superior Court. September 10, 1949.
Kenyon, Kenyon Gunter, for plaintiff in error.
Johnson Johnson, Sloan Telford, and Sidney O. Smith Jr., contra.
1. A general demurrer goes to the whole pleading to which it is addressed, and should be overruled if any part thereof is good in substance. In the present case, and for reasons stated in the corresponding division of the opinion, the allegations of the defendant's cross-action were sufficient to state a cause of action for some of the relief sought thereby and, accordingly, the plaintiff's motion in the nature of a general demurrer to strike it should have been overruled, and it was error not to do so.
2. Where the trial judge erroneously strikes the defendant's pleadings, as in this case, all that happens thereafter on the trial is necessarily nugatory.
No. 16919. JANUARY 11, 1950. REHEARING DENIED FEBRUARY 17, 1950.
Ed White, as administrator of Miss Mamie White's estate, brought a suit in the Superior Court of Hall County, Georgia, to recover from Mrs. Julia Rea Bowles an undivided one-half interest in a certain house and lot located in the City of Gainesville, and prayed for immediate possession and a decree of title. There was no prayer for rents or general relief. The defendant filed an answer and a cross-action. By her answer she admitted that the plaintiff is the administrator of Miss White's estate; that she is in possession of the property sued for, and has been since the death of the plaintiff's decedent; that she has paid no rent since May 31, 1948; and that the plaintiff would be entitled to recover from her the property sued for, except for these facts which she set up in her cross-action as amended, to wit: The property in question was originally the home place of James Henry White, the defendant's paternal grandfather. The defendant's mother died when she was a very small girl, and she was reared in the home here involved by her grandparents and by her two maiden aunts, Misses Mamie and Pearl White. James Henry White by his will, but subject to a life estate in his widow, gave the property in question equally to his two daughters (Mamie and Pearl White). He gave his two sons $1 each. His will was duly probated in Hall County. Her grandfather died in 1929 and her grandmother in 1935. After the death of her grandparents, the defendant and her two aunts continued to make the property in question their home. Neither of her aunts ever married. Miss Pearl White never had any employment outside of the home and never earned any money, she not being in good health, especially during the latter part of her life. Miss Mamie White worked in a store at Gainesville until 1936, when she gave up her employment because of poor health. When the defendant finished high school, she went to work in a ten-cent store at Gainesville and contributed her earnings toward the support of her two aunts. None of the other relatives made any contributions for that purpose. The defendant married on August 2, 1941, and she and her husband fixed up a room in the home so that they could be near, look after and care for the defendant's elderly aunts. During February, 1942, the defendant and her husband moved out of the family residence, but the defendant continued to look after her aunts and regularly ministered to their needs, even to the extent of neglecting her own home. During April, 1943, the defendant and her husband gave up their home and moved back to the home of her aunts so that she could better care for them. They (the defendant and her husband) fixed up an apartment in the home for their separate occupancy and regularly thereafter paid rent for the same, and in addition thereto contributed substantially, both in money and personal services, toward the care and support of their aunts. After the defendant's husband entered military service, she continued to pay rent on her apartment, but spent most of her time with her aunts, they being old and in poor health. After the death of Miss Pearl White on January 15, 1945, the defendant, in order to raise more money for the upkeep of the home and for the support of her surviving aunt, rented her apartment and spent all of her time taking care of the home and of her aunt, who, due to advanced age and extremely poor health, had to be cared for as a child. In 1947, after the defendant's husband had returned from overseas service, and received his discharge, and feeling that her aunt's other relatives should assume at least a part of the responsibility for her care and support, the defendant and her husband decided to buy a lot and build them a home, using the money which he had received for his military service for that purpose. Her aunt, when informed of this, asked the defendant not to buy a lot, but to spend what money she and her husband had on her home and to stay with and care for her until the aunt died, and at that time she told the defendant that, if she would do this, the aunt would make a will devising her home place to the defendant as her own. At that time her aunt understood and believed that she owned the entire interest in the home and the defendant thought so too. The defendant accepted her aunt's proposition, and she and her husband spent at least $1000 in repairing the home, and, further complying with her part of the agreement, she remained with and cared for her aunt until she died on May 31, 1948, rendering her such personal, affectionate, and considerate care and attention as the necessities of an old lady in extremely poor health required, and such services as could not readily be procured elsewhere.
It was further alleged in the cross-action that the defendant's aunt, during September, 1947, in an attempt to carry out her part of the agreement respecting the property in question, had an attorney to prepare her a will by the terms of which she gave the defendant all of the property in controversy, but on being advised by the scrivener that she did not own the entire property, she delayed signing her will until she could get full title to all of it, but she died before this was accomplished, thus leaving her will unsigned and her part of the agreement unperformed. It was further alleged that Miss Mamie White, at the time of her death, owned only an undivided two-thirds interest in the property, and for that reason her administrator could not specifically perform her contract as to the remaining one-third undivided interest therein; that the interest not owned by her aunt's estate was reasonably worth $4000 and consequently she had been damaged by the plaintiff's decedent to that extent, and as compensation for the injury she should have a money judgment against the plaintiff for that amount. The defendant further alleged that she paid her aunt's funeral expenses amounting to $375; that she had not been reimbursed; and that she was entitled to recover that amount from the plaintiff.
The prayers of the cross-action were: (1) that the relief sought by the plaintiff be refused; (2) that title to an undivided two-thirds interest in the premises in question be decreed in her, and the plaintiff be required to execute and deliver to her a deed for the same; (3) that the defendant have judgment against the plaintiff as administrator of Miss Mamie White's estate for $4000, or for such other amount as the jury might find the value of the undivided one-third interest in the property not owned by the plaintiff's decedent to be; (4) that the defendant have judgment against the plaintiff as such administrator for $375 for the funeral expenses of her aunt, which she paid; and (5) for general relief.
The plaintiff made a motion in the nature of a general demurrer to strike the defendant's answer and cross-action — and renewed it after the allowance of an amendment thereto — upon these grounds: (1) the answer and cross-action set forth no defense, and (2) the facts alleged in the cross-action as amended are not germane to the plaintiff's suit. The court sustained the motion and struck the answer and cross-action. To this ruling exceptions pendente lite were timely certified and filed, and error is properly assigned in the bill of exceptions upon that judgment. On the trial the plaintiff introduced in evidence the defendant's answer and cross-action. No other evidence was offered, and upon motion therefor the court directed the jury to find that the plaintiff was entitled to the possession of Miss Mamie White's interest in the premises described in the petition, and such a verdict was accordingly returned. A motion for new trial, based only upon the usual general grounds, was filed, and after hearing was overruled, and that judgment is also excepted to.
1. As shown by our statement of facts, the court sustained a motion in the nature of a general demurrer and struck the defendant's answer and cross-action, and for these reasons we think that the judgment complained of is erroneous:
(a) It was held by this court in Banks v. Howard, 117 Ga. 94 ( 43 S.E. 438): "Contracts under which one of the contracting parties agrees with the other, for a valuable consideration, that he will make a will giving to the other property, either real or personal, have been sustained and enforced in America from the earliest times; and the validity of such contracts seems now to be beyond all doubt." Also, in Gordon v. Spellman, 145 Ga. 682 ( 89 S.E. 749), it was held that "An oral contract by which one of the parties agrees to make a will with a devise of specific property to the other, as compensation for services rendered and to be rendered to the former during his life, is valid and enforceable." In other words, it is well-settled law in this State that equity will take cognizance of and specifically enforce a valid contract for the testamentary disposition of the estate of a decedent. Belt v. Lazenby, 126 Ga. 767 ( 56 S.E. 81); Gordon v. Spellman, supra.
(b) Where a valid contract has been made to devise certain lands to another, and the person to whom the promise was made has fully performed his part of the contract, but the representative of the person making the promise is unable to perform the entire contract because his decedent did not own all the property which he agreed to devise, and the other party to the contract is willing to accept that part of the same which the deceased actually owned, a court of equity will require specific performance of the contract as to the part so owned and compensate the injured or disappointed party in damages for the other. Code, §§ 37-806, 37-807; Causey v. Causey, 106 Ga. 188 ( 32 S.E. 138); Marchman v. Fowler, 145 Ga. 682 ( 89 S.E. 780).
(c) As against a general demurrer, no special demurrer having been interposed, it is enough to say that the allegations of the cross-action are sufficient to show that the defendant fully performed her part of the contract sought to be sustained and enforced, and that the contract is clear, distinct, definite, and one which in good conscience should be specifically performed, See Whitehead v. Dillard, 178 Ga. 714 ( 174 S.E. 244). Ordinarily, where specific performance of a contract to devise land, in consideration of services rendered and to be rendered, is sought, it is necessary for the pleader to allege the value both of the services and of the land, so that a court of equity may know that the contract is fair and just ( Lansdell v. Lansdell, 144 Ga. 571, 87 S.E. 782; Brogden v. Hogan, 189 Ga. 244, 5 S.E.2d 657); but in Bullard v. Bullard, 202 Ga. 769 ( 44 S.E.2d 770), we held that it is not necessary in such a case to allege the value of the services where the contract is between near relatives, and where, as in this case, the services performed are personal, affectionate, and considerate care and attention, such as could not readily be procured elsewhere, and where the value of such services can not be readily computed in money.
(d) A person in possession of land, who has fully performed his part of a valid contract to render services to another upon a promise that the latter will, as a consideration for the services, make a will giving the property to him, is in the same position as one who is in possession of land for which he has paid the purchase-price in full, and consequently holds a perfect equity. Whitehead v. Dillard, supra. And this court held in the early case of Dudley v. Bradshaw, 29 Ga. 17, that "A perfect equity is, in Georgia, a good title even at law; it is a title sufficient to support or to defeat ejectment." Also, in Ogden v. Dodge County, 97 Ga. 462 ( 25 S.E. 321), it was said: "Where the person setting up the equity is already in possession, it is not necessary that he should have the legal title in order to defend his possession; but a perfect equity in the land, as against a plaintiff seeking to recover in ejectment, is a sufficient defense to the action." To the same effect see Sikes v. Seckinger, 164 Ga. 96 ( 137 S.E. 833).
(e) In the brief for the defendant in error it is said that the defendant's failure, as a tenant of Miss White, to surrender possession of the property sued for before seeking specific performance of the contract relied upon is the essence of the plaintiff's demurrer, and for that reason the judgment complained of is not erroneous. It is, of course, a well-settled principle of law in this State that a tenant, while in possession of his landlord's property, is estopped to dispute his title. Code, § 61-107; Johnson v. Thrower, 117 Ga. 1007 ( 44 S.E. 846); Barnett v. Lewis, 194 Ga. 203 ( 20 S.E.2d 912); Consolidated Realty Inv. v. Gasque, 203 Ga. 790 ( 48 S.E.2d 510). But in this case we see no reason for an application of that rule, since the allegations of the cross-action affirmatively show that it is the landlord's title which the defendant claims and seeks to have decreed in her. Necessarily, by asking for specific performance of her aunt's contract, she is acknowledging, asserting, and relying upon her title and the strength of the decedent's title, and the fact that she had title is the foundation of the defendant's claim. In Beall v. Davenport, 48 Ga. 165 (15 Am. R. 656), this court had under consideration the rule which prohibits a tenant while in possession from disputing his landlord's title, and in that case Judge McCay, in speaking for the court, said: "But this rule has never been extended to cover a case where the tenant afterwards buys and gets title from the landlord. . . Indeed, the principle would never seem to come into operation, except when the tenant undertakes to set up a title inconsistent with the idea that at the time he took the possession, the landlord had the title which was recognized between them." And in Raines v. Hindman, 136 Ga. 450 ( 71 S.E. 738, 38 L.R.A. (N.S.) 863, Ann. Cas. 1912C, 347), the rule as stated in the Beall case was again announced and applied. In principle, this case is like the two cases just cited and, following them, we hold in the present case that a proceeding brought by a tenant against the administrator of his landlord's estate for the specific performance of a contract of the intestate to devise lands does not involve a dispute of the landlord's title, but necessarily amounts to an admission by the tenant that his landlord had title. The cases cited and relied upon by the defendant in error are different on their facts from the present case and for that reason are not in point. They are cases where the tenant, while in possession of the leased premises, sought to set up a title antagonistic to his landlord's.
(f) A general demurrer or a motion in the nature of a general demurrer goes to the whole pleading which it attacks, and should be overruled if any part of the same is good in substance. Code, § 81-304; Blaylock v. Hackel, 164 Ga. 257 ( 138 S.E. 333).
For the reasons stated above, the allegations of the defendant's cross-action were sufficient to show that she is entitled to some of the relief sought thereby and, accordingly, it was erroneous to sustain the plaintiff's motion in the nature of a general demurrer and strike it.
2. Headnote 2 does not require elaboration.
Judgment reversed. All the Justices concur.