Summary
In Treadwell v. Treadwell, 216 Ga. 156 (115 S.E.2d 535), we reviewed and reversed an order overruling the general demurrers to the petition.
Summary of this case from Treadwell v. TreadwellOpinion
20895, 20906, 20896, 20907.
ARGUED MAY 10, 1960.
DECIDED JUNE 28, 1960.
Specific performance. Fulton Superior Court. Before Judge Pharr. March 4, 1960.
E. B. Shaw, for plaintiff in error (case No. 20895).
Edward Andrews, contra.
Kermit C. Bradford, for plaintiff in error (case No. 20896).
Edward Andrews, contra.
A party seeking specific performance of an alleged oral agreement to devise land in consideration of the performance of ordinary personal services, must show the value of the land and the value of the services, in order that a court of equity may determine whether or not the contract is fair, just, and equitable; and a petition which fails to allege such values is subject to dismissal on general demurrer.
ARGUED MAY 10, 1960 — DECIDED JUNE 28, 1960.
George Hardy Treadwell filed a petition against Thomas A. Kemp, Jr., as executor of the will of Lucie Garland Thurman, and Hardy Wilson Treadwell. The petition alleged: The plaintiff is a nephew of Lucie Garland Thurman, deceased, and they were endeared to each other, she having cared for him a number of years during his childhood after his mother died. In September, 1948, Mrs. Thurman owned described property upon which a large house and a small tenant house were located. At that time Mrs. Thurman, a widow, was living alone on the property, and she was approximately 75 years of age. The plaintiff and his wife were residents of Richland, Washington, where the plaintiff was employed with the Federal Bureau of Investigation. "During the week of September 26, 1948, while the plaintiff was visiting with Mrs. Lucie Garland Thurman, the plaintiff and Mrs. Thurman did make a verbal agreement in that she did agree to leave to him, upon her death, the homeplace upon which she was then living and which is heretofore described, in consideration of his agreement to request and obtain a transfer by his employer to this area and thereafter to make his home in the little house near to the home of Mrs. Thurman and on the same property. He further agreed, at his own expense, to remodel and enlarge the little house, adding modern conveniences, such as gas, plumbing, electricity and telephone, so that Mrs. Thurman could in her declining years make her residence in the little house with them and have available to her these conveniences which were not available to her in the large home. She wished to retain the original home, which was without these conveniences, but only a few yards away, in order to have it available to her for such time as she wished to live therein in order to retain some privacy. The plaintiff further agreed that he would live upon the homeplace during her lifetime, in order that she not be alone in this secluded dwelling during her declining years." In performance of this contract, Mrs. Thurman, on October 5, 1948, executed a will devising this property to the plaintiff. In performance of his agreement, the plaintiff requested a transfer in his employment from the State of Washington to the area of Mrs. Thurman's home, and this transfer was granted on January 16, 1949. He immediately moved his family to the area and began remodeling and enlarging the little house, making named improvements at his own expense. After this work was completed, he and his wife made their home in the little house, adjacent to the home of Mrs. Thurman. While Mrs. Thurman was living in the large house, they visited her several times a day, made trips for her to the grocery store, laundry, and other places, carried her in their automobile wherever she wished to go, and prepared at least one meal for her each day. After the death of Mrs. Thurman's sister in May, 1951, Mrs. Thurman moved into the house with them, and thereafter they bought all of her food, prepared her meals, and waited on and served her every need. The plaintiff and his wife lived on the described property of Mrs. Thurman the remainder of her lifetime, and paid the expense of upkeep of the grounds, taxes, and insurance. With increasing age Mrs. Thurman needed specialized medical attention that could not be furnished at her home. Her impaired mental condition was evidenced by enumerated acts. By June 26, 1952, her mental condition had deteriorated to such an extent that the plaintiff "put the matter in the hands of the Court of Ordinary of Fulton County by filing a petition asking that the court appoint a guardian for her." Pending the hearing she was placed in the psychiatric ward at Grady Hospital, and while thus confined she signed what purported to be a second will, wherein the property described was devised to a different nephew, the defendant Hardy Wilson Treadwell, and the defendant Thomas A. Kemp, Jr., was appointed as executor. On July 3, 1952, the court found Mrs. Thurman to be a person of unsound mind and appointed the County Administrator as her guardian. The County Administrator, with the court's approval, placed Mrs. Thurman in a private institution where she was under continuous supervision and obtained specialized medical attention. She remained in such private institutions until her death on June 14, 1958. "At all times herein mentioned the plaintiff has truly and faithfully performed his part of said contract." The property is now in the custody and control of the defendants. Thomas A. Kemp, Jr., has probated in solemn form the will dated July 1, 1952, and as executor has failed and refused to convey the described property to the plaintiff in compliance with the contract the plaintiff had with Mrs. Thurman. The property described constitutes the greater part of her estate, and unless the defendants are enjoined from transferring, conveying, or otherwise encumbering this property, the plaintiff will suffer irreparable damage. The prayers were: for process; that the defendants be required to specifically perform the contract alleged, and title to the property be decreed to be in the plaintiff; that until further order of the court the defendants be restrained from transferring, conveying, or in any manner encumbering the property or cutting the timber therefrom; and for further relief.
A temporary restraining order was granted. The defendants filed separate general and special demurrers to the petition, and separate answers. The plaintiff filed demurrers to the answers of the defendants. The trial judge overruled the general and special demurrers of both defendants. Some of the grounds of demurrer of the plaintiff to the answers of the defendants were sustained, and some were overruled.
The defendants filed separate bills of exceptions. The bill of exceptions of the defendant Hardy Wilson Treadwell assigned error on the order overruling his demurrers to the petition, and on that part of the order sustaining grounds of demurrer by the plaintiff to this defendant's answer. By cross-bill of exceptions the plaintiff assigned error on that part of the order which overruled grounds of his demurrers to the answers of the defendants.
The bill of exceptions of the defendant Thomas A. Kemp, Jr., assigned error on the order overruling his general and special demurrers to the petition, and on that part of the order sustaining grounds of demurrer of the plaintiff to the answer of this defendant.
On motion of George Hardy Treadwell for the certification of additional record, the amendments to their answers filed by the two defendants in the trial court, and the renewed demurrers of the plaintiff thereto, were duly transmitted to this court.
Since the questions raised by both main bills and both cross-bills of exceptions arise from the same petition, the cases will be considered together. The parties will be referred to as they appeared in the trial court.
"`A contract upon which specific performance is sought must be certain, definite and clear, and so precise in its terms that neither party can reasonably misunderstand it.' Studer v. Seyer, 69 Ga. 125, 126. Moreover, since specific performance is an altogether equitable remedy, and not one which can be demanded, merely by virtue of a proven agreement, as a matter of absolute right, it must be made to further appear that the contract is equitable and just, and a court will be justified in refusing a decree of performance should inadequacy of price appear, or any other fact showing the contract to be unfair, or unjust, or against good conscience. Code § 37-805; Coleman v. Woodland Hills Co., 196 Ga. 626 ( 27 S.E.2d 226). Thus, if the alleged contract sued on be based on an oral agreement to convey or devise land in consideration of the performance of ordinary personal services, the petition must not only show that the contract is precise in its terms, but must also allege the value of such services and the value of the land or specific data from which such relative values can be determined. Johns v. Nix, 196 Ga. 417 ( 26 S.E.2d 526), and cit. Exceptions to the general rule as to the necessity for averments as to the value of services may exist in cases involving virtual adoption or contracts between near relatives, where one goes into the home of the other agreeing to nurse and give the other personal, affectionate, and considerate attention, such as could not readily be procured elsewhere, and where the value of such services could not be readily computed in money. Potts v. Mathis, 149 Ga. 370 ( 100 S.E. 110); Brogdon v. Hogan, 189 Ga. 250 ( 5 S.E.2d 657); Hankinson v. Hankinson, 168 Ga. 156, 158 ( 147 S.E. 106)." Bullard v. Bullard, 202 Ga. 769 (1) ( 44 S.E.2d 770).
The oral agreement alleged in the present case between the plaintiff and the deceased, Mrs. Thurman, is quoted in full in the statement of facts. Briefly, it is alleged that the obligations of the plaintiff under the contract were that: he was to get a transfer in his employment and move to the little house on the property of the deceased; he was to make enumerated improvements on the little house, adding modern conveniences, "so that Mrs. Thurman could in her declining years make her residence in the little house with them and have available to her these conveniences which were not available to her in the large home"; and he would live on the property during her lifetime in order that she not be alone in her declining years.
There is no further elaboration in the petition of any duties and obligations of the plaintiff under the contract. The petition specifies numerous acts of personal service which the plaintiff and his wife performed for the deceased during the slightly more than three years that she lived on the property after the plaintiff moved thereon, prior to the time that she was placed in a private institution because of her mental condition. It is not asserted that these acts of personal service were required under the contract.
If the contract as alleged was intended to include "personal, affectionate, and considerate attention, such as could not readily be procured elsewhere," ( Bullard v. Bullard, 202 Ga. 769, supra), then it was not certain, definite, and clear as to such personal services. There are no allegations to indicate whether or not it was the intention of the parties that the plaintiff was to provide the necessities of life for the deceased while she was making her home with him, or to furnish the personal nursing care which would likely be needed by one of her advanced age. The allegations in regard to the services later performed could not supply a deficiency in the contract itself.
If the only obligations of the contract were that the plaintiff obtain a transfer in his employment, make his home in the little house near the home of Mrs. Thurman, make substantial improvements on the little house, and live upon the property during her lifetime, then the contract was not one for "personal, affectionate, and considerate attention, such as could not readily be procured elsewhere," ( Bullard v. Bullard, 202 Ga. 769, supra), to take it out of the rule that a person seeking specific performance of an oral agreement to devise land in consideration of the performance of ordinary personal services must allege the value of the land and the value of the services performed, or specific data from which such values can be determined, in order that a court of equity may determine whether the contract is fair, just and equitable, and one that in good conscience should be enforced. Potts v. Mathis, 149 Ga. 367 ( 100 S.E. 110). The mere fact that the contracting parties are relatives is not enough to bring the case within the exception to the rule requiring allegations in regard to the values of the land and of the services rendered. Brogdon v. Hogan, 189 Ga. 244 ( 5 S.E.2d 657).
Since the petition was subject to general demurrer for the reasons heretofore stated, no ruling is made as to the sufficiency of the allegations to show a substantial compliance by the plaintiff with the obligations of the contract.
It was error to overrule the general demurrers of both defendants to the petition. It is therefore unnecessary to consider the assignments of error based on rulings on the special demurrers to the petition. The cross-bills are subject to dismissal, since the trial judge granted leave to the defendants to amend their answers, amendments were filed, the plaintiff's demurrers thereto renewed, and no ruling has been made on the renewed demurrers to the amended answers.
Judgments reversed on both main bills of exceptions; cross-bills dismissed. All the Justices concur.