O.C.G.A. § 23-2-132 (2019)

Annotations

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION PROOF GENERALLY MERITORIOUS CONSIDERATION VALUABLE IMPROVEMENTS General Consideration Construction with O.C.G.A. § 53-4-30. - More specific provisions of O.C.G.A. § 53-4-30 addressing contracts to make a will control over the more general provisions of O.C.G.A. §§ 23-2-131 and 23-2-132 addressing any parol contract as to land and any voluntary agreement or merely gratuitous contract to land, respectively; thus, the equitable relief of specific performance is not

available as a means of enforcing an oral will contract. Newton v. Lawson, 313 Ga. App. 29, 720 S.E.2d 353 (2011). Possession and valuable improvements must be based on oral contract or promise. - When possession and valuable improvements are relied upon for specific performance they must have been by virtue of and on the faith of the oral contract or promise so as to take the case out of the statute of frauds and con-

stitute the equivalent of a writing by showing acts unequivocally referring to the alleged contract or promise. The burden rested on the alleged promisee to bring one’s case within these facts if one did not show other exceptions under Code 1933, § 37-802 (see O.C.G.A. § 23-2-131); and without such proof one was not entitled to specific performance. Taylor v. Cureton, 196 Ga. 28, 25 S.E.2d 815 (1943). Oral gift of land becomes complete and irrevocable when donee takes possession of donated premises and, on faith of the gift, makes valuable improvements; and, as against the donor and those claiming under him with notice, a completed gift of land invests the donee with a perfect equitable title. Sharpton v. Givens, 209 Ga. 868, 76 S.E.2d 806 (1953); Owens v. White, 218 Ga. 1, 126 S.E.2d 425 (1962); Sharp v. Sumner, 272 Ga. 338, 528 S.E.2d 791 (2000). Legal title does not pass merely by parol gift and making of improvements. A decree of specific performance is necessary to pass the legal title. Doe v. Newton, 171 Ga. 418, 156 S.E. 25 (1930); Beetles v. Steadham, 186 Ga. 110, 197 S.E. 270 (1938). Laches will bar petition for specific performance by one who claims land under voluntary conveyance. Prater v. Sears, 77 Ga. 28 (1886). As a general rule, equity will not decree specific performance of contracts relating to personal property. Black v. American Vending Co., 239 Ga. 632, 238 S.E.2d 420 (1977). Gratuitous promise by insured to give the insured’s life insurance to the insured’s estate cannot be specifically enforced. Nally v. Nally, 74 Ga. 669, 58 Am. R. 458 (1885). Agreement to settle family controversy will not be considered voluntary and without consideration, but will be enforced in equity as a fair family arrangement independent of its being a compromise of doubtful rights. Jones v. Robinson, 172 Ga. 746, 158 S.E. 752 (1931). Party not entitled to have contract of gratuitous offer to lease specifically performed. R.A.C. Realty Co. v. W.O.U.F. Atlanta Realty Corp., 205 Ga.

154, 52 S.E.2d 617 (1949). Sufficiency of complaint. - Plaintiff ’s complaint alleging that she entered into a parol agreement with her husband to dissolve the marriage, divide the marital estate, and arrange for child support, that she possessed the property and paid the mortgage pursuant to the agreement, and that she maintained and improved the property, stated a claim under O.C.G.A. § 23-2-132. Coleman v. Coleman, 265 Ga. 568, 459 S.E.2d 166 (1995). Cited in Chan v. Judge, 36 Ga. App. 13, 134 S.E. 925 (1926); Burt v. Gooch, 37 Ga. App. 301, 139 S.E. 912 (1927); Payne v. Thebaut, 180 Ga. 758, 180 S.E. 725 (1935); Kendrick v. Blackwell, 189 Ga. 225, 5 S.E.2d 633 (1939); Trustees of Jesse Parker Williams Hosp. v. Nisbet, 189 Ga. 807, 7 S.E.2d 737 (1940); Moore v. Segars, 192 Ga. 190, 14 S.E.2d 752 (1941); Johns v. Nix, 194 Ga. 152, 20 S.E.2d 758 (1942); Holton v. Mercer, 195 Ga. 47, 23 S.E.2d 166 (1942); Jones v. Jones, 196 Ga. 492, 26 S.E.2d 602 (1943); Christopher v. Whitmire, 199 Ga. 280, 34 S.E.2d 100 (1945); North v. Tolbert, 80 Ga. App. 110, 55 S.E.2d 661 (1949); Matlock v. Duncan, 220 Ga. 200, 137 S.E.2d 661 (1964); Gillis v. Buchheit, 232 Ga. App. 126, 500 S.E.2d 38 (1998). Proof Generally Burden of proof generally. - Evidence which shows all of the requirements necessary to establish a complete equity to land under a parol gift can be offered as a defense to a dispossessory proceeding. The establishment of a complete equity shifts to the plaintiffs the burden of showing some superior right or title to defeat or overcome the defendant’s right. Ogden v. Dodge County, 97 Ga. 461, 25 S.E. 321 (1895); Holton v. Mercer, 65 Ga. App. 53, 15 S.E.2d 253 (1941); Milton v. Milton, 192 Ga. 778, 16 S.E.2d 573 (1941). When title is claimed by virtue of provisions of this section, parol gift thus asserted must be established by evidence which shows its existence beyond reasonable doubt. Causey v. Causey, 224 Ga. 458, 162 S.E.2d 372 (1968). Contract must be certain. - The terms of a gift or parol contract ‘‘should be

Proof Generally (Cont’d) established so clearly, strongly and satisfactorily as to leave no reasonable doubt as to the agreement.’’ Harden v. Morton, 195 Ga. 471, 24 S.E.2d 685 (1943). Petition for specific performance of promise to convey land, to be sufficient as against demurrer (now motion to dismiss), must allege: (1) the promise to give, (2) a meritorious consideration, (3) possession in one’s own right by the donee, and (4) the making of valuable improvements. Mankin v. Bryant, 206 Ga. 120, 56 S.E.2d 447 (1949); Yates v. Yates, 214 Ga. 843, 108 S.E.2d 330 (1959). In order to prevail, it is necessary to establish each of its requirements to authorize a decree of performance of the parol gift; furthermore, when title is claimed by virtue of this section, the parol gift thus asserted must be established by evidence which shows its existence beyond a reasonable doubt. Taylor v. Cureton, 196 Ga. 28, 25 S.E.2d 815 (1943); Causey v. Causey, 224 Ga. 458, 162 S.E.2d 372 (1968); Brown v. Truluck, 239 Ga. 105, 236 S.E.2d 60 (1977). Possession of land under a voluntary agreement, based upon a meritorious consideration, with valuable improvements made upon the faith thereof, will invest the holder with such right or equity that he cannot be ousted by the donor, or by a purchaser from him with notice. However, a mere parol gift is not, without more, sufficient to pass title, nor will it vest in the donee any right or equity as against a subsequent purchaser from the donor, with or without notice. Beetles v. Steadham, 186 Ga. 110, 197 S.E. 270 (1938). A parol gift of land in praesenti, based upon a meritorious consideration and accompanied by possession, but with no valuable improvements made upon the land during the lifetime of the alleged donor, will not authorize a decree of title in the donee. Mulligan v. Mulligan, 201 Ga. 444, 39 S.E.2d 699 (1946). In action to enjoin trespass on a certain acre of land, where plaintiff ’s predecessor in title had orally given the land to a church for cemetery uses, pursuant to which gift corner stakes and lines were set

up and two graves placed thereon, and there was testimony that plaintiff prior to his purchase of larger tract of which the acre was a part was informed of this gift and saw the graves, a verdict for the defendants was authorized by the evidence. Sharpton v. Givens, 209 Ga. 868, 76 S.E.2d 806 (1953). Conflicting theories about land ownership was jury matter. - Trial court properly allowed argument and a jury instruction on O.C.G.A. § 53-4-30 as the parties agreed that an individual’s former father-in-law promised to convey certain property to the individual and his ex-wife, upon the father-in-law’s death; the jury could resolve any conflicting theories as to the ownership of the land and the applicability of O.C.G.A. §§ 23-2-131(a) and 23-2-132. Jackson v. Neese, 276 Ga. App. 724, 624 S.E.2d 139 (2005). Sufficient proof established gift of land. - Although there was no purchase money resulting trust created under former O.C.G.A. §§ 53-12-90, 53-12-91, and 53-12-92 (see O.C.G.A. §§ 53-12-2, 53-12-130, and 53-12-131), a decedent’s mother was entitled to an equity interest in property of the deceased daughter because a constructive trust was established under former O.C.G.A. § 53-12-93(a) (see O.C.G.A. § 53-12-132) and there was evidence of a gift of land under O.C.G.A. § 23-2-132, as an exception to the statute of frauds, in that the mother lived on the property, made valuable improvements, and paid meritorious consideration. Oliver v. 4708 Old Highgate Entry, No. 1:07-cv-2117-ODE, 2009 U.S. Dist. LEXIS 73002 (N.D. Ga. Apr. 21, 2009). Meritorious Consideration Natural affection as meritorious consideration. - In an action for specific performance of an alleged parol promise to give land, the natural love and affection of a father for his son supplies the element of meritorious consideration. Milton v. Milton, 192 Ga. 778, 16 S.E.2d 573 (1941). Labor, expenditures, love and affection. - Wife’s provision of labor, expenditures and natural love and affection amounted to meritorious consideration for

a valid oral gift of a one half undivided interest in husband’s property. United States v. 1419 Mount Alto Rd., 830 F. Supp. 1476 (N.D. Ga. 1993). Damage or trouble to the promisee, as well as benefit to the promisor, is a sufficient consideration to support a promise. Mankin v. Bryant, 206 Ga. 120, 56 S.E.2d 447 (1949). Valuable Improvements Section requires permanent and beneficial improvements. - Where petition alleged that plaintiff, relying upon the promise of the corporation to convey to him certain property, went into possession thereof and made valuable improvements thereon, it alleges a benefit to the corporation by reason of the enhancement in value of its remaining property because of the valuable improvements made by the

plaintiff, and an injury to the plaintiff, by reason of the valuable improvements made by him in reliance upon the promise. Mankin v. Bryant, 206 Ga. 120, 56 S.E.2d 447 (1949). Slight improvements of small value, if they are substantial and permanent in their nature and are beneficial to the land, in other words, if they are such as an owner would ordinarily make upon the land under like circumstances, then these improvements are sufficient to comply with the requirements that plaintiff made valuable improvements. Davis v. Newton, 215 Ga. 58, 108 S.E.2d 809 (1959). Sufficiency of improvements which donee must have made to complete parol gift of land is question for jury to determine. Sharpton v. Givens, 209 Ga. 868, 76 S.E.2d 806 (1953); Barfield v. Hilton, 235 Ga. 407, 219 S.E.2d 719 (1975).

RESEARCH REFERENCES C.J.S. - 81 C.J.S., Specific Performance, § 46. ALR. - Early death of vendor as affecting enforcement of contract to convey in consideration of contract for his or her support for life, 49 A.L.R. 601. Broker’s right to commission where cus-

tomer repudiates or fails to complete contract or promise which is oral or not specifically enforceable, 12 A.L.R.2d 1410. Validity and enforceability of contract which expressly leaves open for future agreement or negotiation the terms of payment for property, 68 A.L.R.2d 1221.