Opinion
28211.
SUBMITTED SEPTEMBER 11, 1973.
DECIDED OCTOBER 5, 1973.
Specific performance. Bulloch Superior Court. Before Judge Hawkins.
Anderson Sanders, Cohen Anderson, Lanier Lanier, Robert S. Lanier, for appellants.
Allen, Edenfield, Brown Franklin, B. Avant Edenfield, W. J. Neville, for appellee.
A court of equity will not decree specific performance of an oral contract to sell real property where such oral contract is made by the purported purchaser with an alleged agent of the owner and the agent has no written authority to enter into a contract for the sale of such real property.
SUBMITTED SEPTEMBER 11, 1973 — DECIDED OCTOBER 5, 1973.
W. M. Sheppard, doing business as Sheppard Lumber Company, filed an action against W. K. Jones, his brother and two sisters to procure specific performance of an oral contract for the sale of real property. The evidence authorized a finding that the defendants were heirs of the W. M. Jones Estate and that W. K. Jones had acted as agent of the other heirs of such estate in the sale and lease of real property, that an agreement as to the sales price of the property in dispute was reached by the plaintiff and the defendant, W. K. Jones, that the terms of such agreement were known by at least one of the other defendants, that the plaintiff while in possession expended funds to make improvements, that thereafter the defendants refused to execute a deed, and that after a tender of the purchase price had been made and refused, the present action was filed. The jury returned a verdict for the plaintiff and the defendants' motion for judgment n. o. v. based upon a prior motion for a directed verdict, as well as an amended motion for new trial, was overruled and the present appeal filed.
The first issue to be determined is whether a contract to sell land, as distinguished from authority to execute a deed to land, is binding upon a principal where there is no written authority given the agent and the contract to sell is oral.
The trial court in overruling the motions for judgment n. o. v. and for a new trial in the alternative distinguished authority to sell from authority to execute a deed, citing Watson v. Brightwell, 60 Ga. 212, and held that authority to sell real property did not have to be in writing and that where an agent had oral authority to sell property and did agree with a purchaser orally to sell the land and where the purchaser went into possession and made improvements, the owner could be required under a decree for specific performance to execute a deed to the purchaser.
The decision in Watson v. Brightwell, supra, dealt with the recovery by the agent for services rendered and did not relate to specific performance of such a contract. The majority opinion in Brandon v. Pritchett, 126 Ga. 286 ( 55 S.E. 241, 7 AC 1093), relied upon by the appellee to support his contention that written authority is not necessary to enter into a contract required by the statute of frauds to be in writing is not authority for his position, for such ruling was expressly disapproved by this court in the full bench opinion in Byrd v. Piha, 165 Ga. 397, 402 ( 141 S.E. 48), where it was held in dealing with now Code § 4-105 "We are of the opinion that the proper construction of this section is that agencies for the execution of agreements which are required to be made by principals to be in writing, must be created by written authority. Otherwise, the purpose of the statute of frauds, which is to prevent frauds and perjuries, would be virtually done away with. So we are of the opinion that under this section the authority of an agent to execute a contract or memorandum for the sale of real estate or for the lease thereof for a period longer than one year, must be evidenced by writing. Under this section it is just as important that the authority of an agent shall be in writing as that the contract which he makes shall be in writing."
In Terry v. Kean, 180 Ga. 627 ( 180 S.E. 135), it was held that where the purported purchaser went into possession under a lease held by her husband, improvements made by her could not be notice to the owner that she was making improvements under an oral contract made with the owner's purported agent.
The plaintiff in the case sub judice was in possession of a part of the land under a rental agreement and this possession and any improvements made under such possession would not be notice to the owners that they were made under possession under any contract of sale. This, together with the fact that there was no evidence of ratification by the defendants, Bradford and Ryals, demanded a finding for the defendants, and the judgment of the trial court overruling the defendants' motion for a judgment non obstante veredicto must be reversed.
2. In view of the decision in the first division of the opinion, the enumerations of error relating to the charge to the jury and the usual general grounds of the motion for new trial are moot.
Judgment reversed with direction that a judgment non obstante veredicto be entered for the defendants. All the Justices concur.