Opinion
18815.
ARGUED JANUARY 10, 1955.
DECIDED FEBRUARY 14, 1955.
Title to land. Before Judge Edmondson. Hall Superior Court. October 9, 1954.
Hammond Johnson, Johnson Johnson, for plaintiff in error.
Telford, Wayne Smith, contra.
1. A contract of sale between a husband and wife, which was not approved by an order of the superior court of their domicile, entered into at a time when such approval was necessary in order to make the contract valid, can not be specifically enforced by the husband against the executrix of the wife.
2. The evidence did not demand a finding that the alleged contract was consummated.
3. There was no evidence showing that the alleged contract was fair, just, and equitable; and a court of equity will not decree the specific performance of a contract in the absence of such proof.
4. The verdict of the jury was not demanded by the evidence, and the trial judge did not err in granting a new trial.
ARGUED JANUARY 10, 1955 — DECIDED FEBRUARY 14, 1955.
In her petition for partition, Mrs. Christine Jones alleged: The last will and testament of Mrs. Blannie Cochran Payne was duly probated in solemn form at the April term, 1953, of the Court of Ordinary of Hall County, and the petitioner is the duly qualified executrix of such will. The petitioner and Claude E. Payne are common owners of two described tracts of land in Hall County; each is entitled to one-half of the land; a division can not be agreed upon, and partition is necessary; notice has been given of the intention to make application for partition; and a fair and equitable division of the lands can not be made by metes and bounds by reason of improvements thereon. She prayed that her title be established, for partition by sale and a division of the proceeds, and for other relief. By amendment she alleged that the defendant is in possession of the land; the property is valuable as rental property; and the defendant has enjoyed the exclusive use and benefits of the property to the wrongful exclusion of the petitioner, who is entitled to one-half of the benefits.
In his answer the defendant admitted that the petitioner had qualified as executrix. He denied that the petitioner and the defendant are owners in common of the land described; and alleged that he is the sole owner, and there is no necessity for any partition. By amendment the defendant alleged: Title to the land described is in the defendant. He paid to the petitioner's testatrix the purchase price in full for her interest. Prior to March 8, 1949, he gave to Mrs. Payne another described tract of land for her undivided one-half interest in the land described in the petition. The five lots comprising the tract of land then owned by him were sold as the property of Mrs. Payne for a total price of $7,134, and this sum was paid to her by the purchasers of the lots. The defendant by reason of these facts has good title to all of the land described in the petition. He prayed that title to the land be decreed to be in him, that the prayers of the petition be denied, and for such further relief as he might be entitled to in law, equity, or good conscience.
Upon the trial of the cause the defendant tendered in evidence a petition of Mrs. Payne to the Superior Court of Hall County, in which she had alleged: Her husband, the defendant, is a resident of Hall County. She and the defendant are husband and wife. Her suit is brought for the purpose of obtaining an order of the superior court authorizing her to convey to her husband by deed title to certain land located in Hall County. She and her husband own land described in a certain plat, and they have made a contract that she should convey fee-simple title to her interest in the land described and deliver to the defendant a warranty deed, upon payment to her by the defendant of $7,134. She prayed that the contract be approved, for process, that the defendant be served, and after inquiry by the court, that the court issue an order approving the making and delivery of deeds and conveyances upon the consideration aforesaid. The petition was duly verified and filed on March 17, 1949. The defendant filed a verified answer on April 18, 1949, admitting the allegations of the petition, and praying that the prayers of the petition be granted. It is not contended that the petition of Mrs. Payne to be allowed to make a deed was ever approved by the judge of the superior court.
The defendant offered evidence in support of his contentions that an agreement was made for the exchange of lands with his wife; that the lands individually owned by him were advertised as the property of the wife, and were sold at auction as her property; and that payment was made to her pursuant to such sale.
At the conclusion of the evidence the jury returned a verdict for the defendant. The executrix filed a motion for new trial, which was later amended, and after hearing, a new trial was granted. The defendant excepted to this judgment. It is contended that the trial court abused its discretion in granting a new trial, since the verdict for the defendant was demanded under the evidence as a matter of law.
Other facts material to the rulings made will be set out in the opinion. The parties will be referred to as they appeared in the trial court.
1. The defendant contends that the petition filed in the superior court by Mrs. Payne, seeking approval by the court of the contract to convey her one-half interest in the property now sought to be partitioned, established the contract between the parties as alleged in his answer. The allegations of the petition of Mrs. Payne are sufficient to show that, at the time of the filing of such petition, there was an existing contract. Murray County v. Pickering, 198 Ga. 354, 360 ( 31 S.E.2d 722). The record does not contain any order by the judge of the superior court approving the proposed exchange of property, or the sale of the wife's property to her husband.
At the time of the filing of the wife's petition, Code § 53-504 was of full force and effect, and this section provided: "No contract of sale by a wife of her separate estate to her husband or her trustee shall be valid, unless the same shall be allowed by order of the superior court of the county of her domicile." Under this Code section it has been held many times that a deed by a wife for the sale of her separate estate to her husband without an order of approval by the judge of the superior court of her domicile is void. Hood v. Perry, 75 Ga. 310; Fulgham v. Pate, 77 Ga. 454, 455 (2); Carpenter v. Booker, 131 Ga. 546 ( 62 S.E. 983, 127 Am. St. R. 241); Stonecipher v. Kear, 131 Ga. 688 (2) ( 63 S.E. 215, 127 Am. St. R. 248); Echols v. Green, 140 Ga. 678 (3) ( 79 S.E. 557); Rich v. Rich, 147 Ga. 488 ( 94 S.E. 566).
"Courts of equity will not enforce a contract if it is of such character as contravenes the policy of our law." Thomas v. Holt, 209 Ga. 133 ( 70 S.E.2d 595). See also Trainer v. City of Covington, 183 Ga. 759 ( 189 S.E. 842); Robinson v. Reynolds, 194 Ga. 324 ( 21 S.E.2d 214); Foster v. Allen, 201 Ga. 348, 349 (3) ( 40 S.E.2d 57); Hanley v. Savannah Bank Trust Co., 208 Ga. 585, 586 ( 68 S.E.2d 581); Glosser v. Powers, 209 Ga. 149 ( 71 S.E.2d 230). In Dorsett v. Garrard, 85 Ga. 734, 738 ( 11 S.E. 768), the general rule is stated to be: "If a contract be illegal as against public policy, its invalidity will be a defense while it remains unexecuted. If the illegal contract be in part performed and money has been paid in pursuance of it, no action will lie to recover the money back."
In Webb v. Harris, 124 Ga. 723, 730 ( 53 S.E. 247), it was held: "If the wife conveys to the husband, she has the right to elect either to apply to the superior court for an order making absolute her title, which is only provisional, or she may repudiate the transaction altogether. If she desires the title to be made complete, an order of the superior court is essential. If she desires to repudiate the transaction, nothing is needed except an act of repudiation on her part. Until the sale is approved by the superior court, the husband deals with the property as his own at his risk and pays out money at his peril."
Code § 53-504 was repealed by an act of the General Assembly approved February 15, 1950 (Ga. L. 1950, p. 174). The repeal of this statute did not confer upon the defendant any additional rights or powers under the facts of this case. After the repeal of the statute the wife did not make a deed to the defendant, nor does it appear that there was any renewal of the pre-existing contract. Under the law the wife had a vested ground of defense to any action by the defendant asserting title to the property of the wife. This vested defense of the wife, based on the restriction of Code § 53-504, could not be defeated by a repeal of the statute which limited the right of the wife to convey her individual property. "A vested ground of defense is protected from being destroyed by an act of the legislature." Guest v. Stone, 206 Ga. 239, 243 ( 56 S.E.2d 247); Bullard v. Holman, 184 Ga. 788 ( 193 S.E. 586, 113 A.L.R. 763).
The contention of the defendant, that the executrix would have to restore, or offer to restore any amounts paid to the wife by him as a condition precedent to asserting an interest in the land described, is without merit. Code § 37-104, upon which the defendant relies, relates to an action wherein the complainant, who is seeking cancellation, must restore, or offer to restore, any benefits received under the instrument sought to be canceled. In the present case the executrix of the wife is not seeking cancellation. She is relying on a recorded title to the property which she seeks to have partitioned. If the defendant, as contended, paid money to the wife without first procuring approval of the alleged contract by the judge of the superior court, he did so at his own peril, and he can not insist in this action upon restitution by the executrix of the wife as a condition precedent to a judgment of partition. Wellborn v. Johnson, 204 Ga. 389 ( 50 S.E.2d 16); Dumas v. Dumas, 206 Ga. 767 ( 58 S.E.2d 830).
2. Assuming, but not deciding, that the defendant's evidence may have been sufficient to authorize the jury to find that he made payment pursuant to the wife's petition for approval of her contract with him, such a finding was not demanded as a matter of law. The executrix introduced copies of the tax returns of the defendant and his wife, made subsequently to the alleged contract between them. In 1950 the defendant signed a tax return, showing the defendant and his wife as joint owners of the property sought to be partitioned. In 1951 the wife returned the property in like manner, and again in 1952. In 1953 the defendant returned the property as that of the defendant and wife jointly. From these tax returns the jury would have been authorized to infer that the purported contract was never consummated, and that it was abandoned by mutual consent.
3. Inadequacy of price may justify a court of equity in refusing to decree specific performance of a contract; so also any other fact showing the contract to be unfair, unjust, or against good conscience. Code § 37-805.
There is nothing in the pleadings of the defendant, or in the evidence, upon which a court of equity might base a decision that the alleged contract between the husband and wife was fair, just, and equitable, and one that in good conscience should be performed (if otherwise lawfully authorized). Consequently, under the rules stated in Coleman v. Woodland Hills Co., 196 Ga. 626 ( 27 S.E.2d 226), Jenkins v. Evans, 202 Ga. 423 ( 43 S.E.2d 501), Holliday v. Pope, 205 Ga. 301 ( 53 S.E.2d 350), and Harris v. Abney, 208 Ga. 518 ( 67 S.E.2d 724), the court could not properly have submitted to the jury the question as to whether or not the contract between the defendant and his wife should be specifically performed.
4. From the foregoing rulings, it must be held that the judge of the superior court did not err in granting the motion for new trial.
Judgment affirmed. All the Justices concur.