Opinion
18617.
ARGUED JUNE 14, 1954.
DECIDED JULY 13, 1954.
Complaint for land. Before Judge Forehand. Irwin Superior Court. April 16, 1954.
W. R. Mixon, R. D. Smith, for plaintiffs in error.
J. C. McDonald, McDonald McDonald, contra.
1. The trial court erred in failing to instruct the jury that the proof of the facts set up in the plaintiff's petition with regard to the claim of a parol gift of land must be such as to satisfy the minds of the jury to a reasonable certainty and beyond a reasonable doubt that such parol gift was made as alleged.
2. The law as declared in Code § 48-106 was applicable to the pleadings and the evidence.
3. The evidence was insufficient to establish a parol gift of the particular piece of land in controversy; however, the petitioner was also claiming said property under the provisions of Code § 48-106, and the evidence, though conflicting on the question of whether the petitioner had been in exclusive possession of the property for seven years, was sufficient to support a finding in favor of the petitioner under the provisions of the above Code section.
ARGUED JUNE 14, 1954 — DECIDED JULY 13, 1954.
Mrs. Irma Harper Hudson filed in Irwin Superior Court, against Mrs. Pansy Harper and others individually, and Elbert L. Harper and Need Harper as executors under the will of Arthur Harper, deceased, a petition which alleged substantially the following: The petitioner and all the defendants except the executors are heirs at law of Arthur Harper. The petitioner is the daughter of Arthur Harper. In 1921 Arthur Harper gave her a described tract of land consisting of 245 acres. The petitioner had the exclusive possession of the land from 1921 up until the present time, and she never paid any rent from the time she went into possession until the death of her father in 1953. In 1922, she built a new house on the property, and she has built a tobacco barn thereon, a pack house, and a mule barn. She built fences and kept the property in repair and paid the taxes continuously from 1921 until the present time. The petitioner lived on the property until 1925, and thereafter rented it to various tenants and collected all the rents from 1925 up to and including 1953. Arthur Harper failed to execute a deed to the petitioner to the property, but at the time of his death, she was in possession thereof by and through her tenant. The defendant executors are attempting to administer the estate of Arthur Harper, and do not recognize the petitioner's claim of title. The executors are acting under an alleged will of Arthur Harper, which has not been probated in solemn form, but merely in common form. The executors have announced that they intend to sell the property in question, which would constitute a cloud upon the petitioner's title and, unless they are enjoined, will result in a multiplicity of actions. It is necessary that a court of equity intervene and declare the title to the property to be in the petitioner, and that the court specifically decree that as against all the defendants the property was given to the petitioner by her deceased father. The prayers, besides for process, second originals where necessary, and a rule nisi, were: that the defendants be enjoined from selling the property referred to in the petition and from interfering with the petitioner's possession; that fee-simple title to the property be decreed to be vested in the petitioner; and that she have general equitable relief. A copy of the purported will of Arthur Harper was attached as an exhibit and made a part of the petition.
The executors, and one of the defendants individually, filed their answers denying material allegations of the petition.
Hansel Hudson, the husband of the petitioner, testified in part: He and petitioner were farming on halves in 1922, having a pretty hard time, and petitioner's father, Arthur Harper, told witness: "I got something over 700 acres down yonder, you all take the lower part of that down there. . . You all take it and go down there. Yes sir, that was my wife, Irma, and me. He said, you and Irma, you all take it and you can have it. Go down there. I don't want you working up here on halves. Take that land. It will be better than working on halves and we did." Witness and petitioner moved into a two-room negro house and lived on the western half of land lot number 245 for four years. They made pretty good crops and bought lumber and built a house. They put in new wire and a whole new fence. Witness's father got in bad health and they moved across town and rented the land. Thereafter they built a tobacco barn and a pack house. From the time Arthur Harper gave the place to petitioner until now, they did not pay any rent. He gave her that land, all the rest of that lot. He said he was giving it to her. Petitioner's father said there was a loan on the 740 acres, and he would have to pay off the debt before he could make a deed. Petitioner did not return the place for taxes, but she paid her father her part of the taxes. Petitioner's father worked trees on the place for turpentine in 1934 and 1935. Her father said, "Irma, I am in awful bad shape and condition." He made it all right with Irma. And she said, "Papa, you know that's best, whatever you do is all right with me." Petitioner's father sold timber from the land to build a house for one of his sons, but he made it all right with petitioner and she told him it would be all right.
Various persons testified they farmed the place known as the Elisha Paulk place or Mrs. Irma Hudson's place and cultivated about 45 acres thereof as tenants of the latter for stated years. Other witnesses testified that Arthur Harper told them he had given the property to the petitioner.
There was evidence for the defendants to the effect that Arthur Harper worked trees for turpentine purposes and sold timber from the land claimed by the petitioner, and at different times, after the alleged gift, farmed through tenants a part of said land. His will, which was executed January 2, 1953, devised to the petitioner and his other children each a certain number of acres of land, and directed that the property in question be sold for division. It was stipulated that the house, the tobacco barn, and other improvements put on the place are worth at least $1,500.
The jury returned a verdict in favor of the petitioner. The defendants' amended motion for new trial was denied, and the exception is to that judgment.
1. The first special ground of the amended motion for new trial complains that the trial court erred in failing to charge the jury "that not only was the burden upon the plaintiff to prove her case by a preponderance of the evidence, but that the proof of the facts set up in her petition with regard to the claim of a parol gift of land must be such as to satisfy the minds of the jury to a reasonable certainty and beyond a reasonable doubt that such parol gift was made as alleged."
A reading of the entire charge shows that the trial court did not instruct the jury that any degree of proof beyond that of a preponderance of the evidence was necessary. While under the pleadings and evidence there were issues in the present case to which the preponderance-of-evidence rule as given was applicable, still, with respect to the alleged parol gift, the burden was on the petitioner to establish such gift to a moral and reasonable certainty and beyond a reasonable doubt by clear, strong, and satisfactory evidence. Christopher v. Mooty, 155 Ga. 286 (2) ( 117 S.E. 90); Aultman v. Gibson, 172 Ga. 877 (2) ( 159 S.E. 285); Crosby v. Higgs, 181 Ga. 314 (2) ( 182 S.E. 10); Mickle v. Moore, 193 Ga. 150 (2) ( 17 S.E.2d 728); Barnes v. Bell, 206 Ga. 660, 662 ( 58 S.E.2d 400). Accordingly, the trial court erred in failing to instruct the jury the right rule as to the degree of certainty imposed upon the petitioner with respect to the alleged parol gift.
2. The fourth special ground complains of the charge: "The exclusive possession by a child of lands belonging originally to the father, without payment of rent, for the space of seven years, shall create conclusive presumption of a gift, and convey title to the child, unless there shall be evidence of a loan, or a claim of dominion by the father acknowledged by the child, or of a disclaimer of title by the child." Code § 48-106.
There being evidence, though conflicting, on the question of whether the petitioner had been in exclusive possession of the property under consideration for seven years, the court did not err in giving the above instruction to the jury. Mitchell v. Hunt, 185 Ga. 835 (2) ( 196 S.E. 711).
3. The second and third special grounds are elaborative of the usual general grounds. The second ground complains that the evidence was insufficient to clearly establish the alleged parol gift, and the third ground complains that the evidence was insufficient to show that this particular land was the subject matter of a parol gift from Arthur Harper to his daughter. These two grounds will be considered together.
The evidence did not, as contended by counsel for the petitioner, demand a finding in her favor. "In an action in equity for specific performance of an alleged parol contract, the agreement must be proved so clearly, strongly, and satisfactorily as to leave no reasonable doubt as to the contract." Salmon v. McCrary, 197 Ga. 281 (1) ( 29 S.E.2d 58); Haynes v. Ellis, 199 Ga. 702 (2) ( 35 S.E.2d 151); First Nat. Bank c. Co. v. Falligant, 208 Ga. 479, 481 ( 67 S.E.2d 473). The same strict rule applies where, as here, a daughter is claiming land under an alleged parol gift from her deceased father. Poullain v. Poullain, 76 Ga. 420 (2) ( 4 S.E. 92).
In the instant case, the only evidence of such parol gift was the testimony of Hansel Hudson, the petitioner's husband, to the effect that the petitioner's father told her that he had something over 700 acres down there and for her to take the lower part of it. There was evidence that this property was known as the Elisha Paulk place, but there was no evidence that the father in giving the place to his daughter identified it by that or any other name. The substance of what he said was that he owned over 700 acres down there and for her to take the lower part and that it would be hers.
Applying the above-stated principle of law, the evidence was insufficient to establish a parol gift of the particular piece of land in controversy, as contended by counsel for the plaintiff in error; however, the petitioner was also claiming said property under the provisions of Code § 48-106, and, as indicated in the second division of this opinion, the evidence, though conflicting on the question of whether the petitioner had been in exclusive possession of the property for seven years, was sufficient to support a finding in her favor under the provisions of the above-stated Code section.
Judgment reversed. All the Justices concur.