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Specific performance. Laurens Superior Court. Before Judge Stephens. July 31, 1958.
DUCKWORTH, Chief Justice.
Where, as here, the pleadings and evidence are extremely confusing, and the evidence not only shows that the plaintiff has no basis in fact for his prayers for requiring the defendant to convey her land to him, but shows that he has no right to have it done, and further that no grounds for enjoining her from alienating her land exist, it shows that the plaintiff cannot prevail, and the judgment of nonsuit against the petitioner must be affirmed.
This is an action for specific performance brought against the wife of a deceased partner of the petitioner, seeking to have her convey to the petitioner a one-half interest in real estate that she received as the only heir at law of her deceased husband, on the basis that her husband had entered into a contract with the petitioner whereby they purchased a tract of land, built a building thereon, and agreed that they would pay off the indebtedness created in constructing the building, most of which was loaned by the petitioner, from the net proceeds of a business run by the deceased husband; and if he failed to pay the amounts agreed upon monthly, the petitioner might assume control of the business and property and offer it for sale and "from the proceeds of sale . . . pay the debts of said business." The petition alleges further that he failed to make the payments; that the petitioner took over the business and ran it; that a fire destroyed the building, and that he rebuilt it, using the insurance money and other funds belonging to him; that he has now expended more of his own funds than the building is worth, and has entered into a contract to sell the property in order to salvage as much as is possible of the money he has expended; and that the wife refuses to make a deed to him; and, having no adequate remedy of law and having performed his part of the contract, he prays for specific performance of the contract by having the wife convey the one-half interest in the land to him.
On the trial of the case, the contract between the parties was offered in evidence together with testimony by the petitioner as to the contract, the abandonment of the business venture by the deceased husband, and other activities as to what the deceased did or did not do. The evidence was continually objected to, in that the witness was testifying in his own favor and the evidence was against the interest of the deceased person. This evidence was allowed to be introduced. However, at the conclusion of this witness's testimony, the attorney for the defendant moved for a nonsuit on the ground that the jury could not intelligently reach a verdict, and the court granted the same. The exception is to that judgment.
It was there said in headnote 1: "The court is authorized to award a nonsuit whenever the plaintiff fails to make out his case as laid; and this failure to produce sufficient proof may arise when the evidence introduced by the plaintiff is so vague and indefinite as not to enable the jury to determine the amount which the plaintiff may be entitled to recover [italics ours]. There must be some criteria, either in direct proof or circumstances, upon which a verdict can be predicated, or the judge is authorized to award a nonsuit."
This suit seeks to compel the defendant to convey her undivided one-half interest in the described lands to the plaintiff. There is not a document or even a verbal contract executed by her which obligates her to do what the petition seeks to compel her to do. Indeed there is neither alleged nor proven any contracted obligation, written or verbal, executed by her deceased husband, obligating him to convey as this suit seeks to have his wife convey her interest in this land. The sole contingency stipulated between the husband of the defendant and the petitioner in which the entire land was to be sold was when the husband failed to make the monthly payments of $400 from proceeds of the business on the specified outstanding indebtedness. Here it is shown that, while this contingency there stipulated occurred, the power to sell was not invoked. So all reference to that contract must be completely put aside if an understanding of the case is to be accomplished. The only other contract is one executed by the petitioner alone, which provided for the rental of the premises involved for $100 per month, with an option for the lessee to purchase within a year for a price of $7,000, on which the rentals paid were to be credited. It vaguely appears that the lessee seeks to exercise the option to purchase, and this plaintiff desires the defendant to sell. But there is no prayer that she deed it to the lessee. Instead, the prayer is that she deed it to the petitioner. For what consideration? Upon what obligation of hers, and what the petitioner would do with the title received from her, are all mysteries.
Though the exception here is to a judgment of nonsuit, which this court has repeatedly held brings for decision the one issue of whether or not the evidence proved the allegations (McCand- less v. Conley, 115 Ga. 48, 41 S. E. 256; Kelly v. Strouse, 116 Ga. 872, 43 S. E. 280; Evans v. Josephine Mills, 119 Ga. 448, 46 S. E. 674; McMillan v. Mobley, 169 Ga. 511, 150 S. E. 843), yet, if the evidence shows petitioner not entitled to recover, a nonsuit will not be reversed even though the allegations be proven. Donaldson v. Marsh Cypress Co., 9 Ga. App. 267 (70 S. E. 1121); Jackson v. Thompson, 77 Ga. App. 367 (48 S. E. 2d 903); Sewell v. Anderson, 197 Ga. 623 (30 S. E. 2d 102); Davis v. W. P. Brown & Sons Lumber Co., 198 Ga. 486 (32 S. E. 2d 253); and Taylor v. Gates, 206 Ga. 880 (59 S. E. 2d 365). The present case requires an application of the rule last cited above. The evidence proves that this defendant is under no obligation to convey her land to the petitioner. It also shows that he has no semblance of a right to prevent by injunction her conveyance or encumbering of the land in question. It follows that the judgment of nonsuit must be
Affirmed. All the Justices concur.
Harold E. Ward, H. Dale Thompson, contra.
B. B. Hayes, E. L. Stephens, Jr., for plaintiff in error.
Saturday May 23 01:21 EDT

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