Veruki v. Burke

Atkinson, Justice. (After stating the foregoing facts.) This case was assigned to the writer to present the opinion of the majority of the court. It does not represent the writer’s views, as will appear in a dissent attached hereto. The allegations of the petition show full performance of all obligations undertaken by the plaintiff’s parents as the consideration for the promise of the deceased to leave a will bequeathing the property in question to the plaintiff. The case as made by the petition is on principle precisely the same as if a contract had been made for the purchase of realty and the full amount of the purchase-money had been paid in compliance with the contract. In such a case, the vendee would have a perfect equity, which would be good title even at law, and which would be sufficient either to support or defeat an action in ejectment. In this case, the contract was made by the plaintiff’s father for the benefit of the plaintiff child, and therefore full performance of all the obligations undertaken by the father or by the father and mother would result in a perfect equitable title in the plaintiff, for whose benefit the contract was made; and therefore whoever held the legal title after the death of the grandmother necessarily held it in trust for the plaintiff. In these circumstances, the plaintiff, though not himself a party to the original contract, was entitled to maintain the action for specific performance under the allegations in his petition. See, in this connection, Code, § 37-802; Belt v. Lazenby, *847 126 Ga. 767 (5) (56 S. E. 81); Sheppard v. Bridges, 137 Ga. 615 (74 S. E. 245); May v. Sorrell, 153 Ga. 47, 53 (111 S. E. 810); Copelan v. Monfort, 153 Ga. 558 (3), 567 (113 S. E. 514); Evans v. Sawilowsky, 179 Ga. 547 (4), 556 (176 S. E. 625); Strickland v. Jenkins, 198 Ga. 15 (31 S. E. 2d, 18); Long v. Godfrey, 198 Ga. 652 (32 S. E. 2d, 306). If the views here expressed should be in conflict with the ruling in Shropshire v. Rainey, 150 Ga. 566 (3) (104 S. E. 414), it will be observed that the decision in that case was not concurred in by all the Justices (one dissenting), and therefore is not controlling as authority. The present case is distinguished by its facts from Avary v. Avary, 202 Ga. 22 (41 S. E. 2d, 314), where no right of the beneficiaries to sue upon a contract was involved. In that case James Corbin Avary filed a claim to property which had been levied upon under an execution, and in support of his claim alleged that during December, 1939, he made an agreement with his uncle, Dr. Avary, wherein the latter agreed with him and his wife that, if they would move into the house with him and keep house and care for him during the remainder of his life, he would make a will giving the two minor children of the claimant all of his property. The claimant further alleged that later he and Dr. Avary entered into an agreement under which the latter by deed conveyed the property to the claimant, in order to remove any doubt about the validity of his will, and this was done, except that, at the suggestion of the claimant, a life estate in the property was reserved by the grantor. It was contended by the plaintiff in execution that this agreement was invalid for the reason that the parties thereto could not thus bargain away the rights of the minor children as beneficiaries under the original contract, and in the opinion by this court it was said arguendo that the children could not have maintained an action on the contract in their own name if there had been a breach of it on the part of Dr. Avary. However, they were not seeking to maintain any action upon the contract, and the only question for determination was whether thereafter the claimant and Dr. Avary had a right to modify the contract between them without the consent of such minor beneficiaries. Accordingly, that decision is not controlling here. And especially is this true, since the al *848 legations in that case did not show complete performance of the contract so as to give rise to a perfect equity in such minor beneficiaries; whereas in the instant case a perfect equity in the child, the equivalent of legal title, was shown. There was also one dissent in that case. It follows that the petition was sufficient to set forth a cause of action, and the trial court did not err in overruling the general demurrer interposed by the defendants. Judgment affirmed. All the Justices concur, except Atkinson, J., who dissents, and Wyatt, J., who took no part in the consideration or decision of this case.