112 Ga. 247 | Ga. | 1900
Mrs. Sallie E. Austin brought suit in Upson superior court against J. O. Whatley, Robert M. Collier, Mrs. Gussie L. Collier, and the latter’s two minor children, Lillian and William Collier, claiming a one-fourth undivided interest in a tract of 240 acres of land known as the old Whatley place. She admitted in the petition that the defendants owned the remainder of that land, J. O. Whatley one fourth, Robert M. Collier one fourth, and Mrs.Gussie L. Collier and her two children the remaining fourth.- James O. Whatley filed a proceeding in the nature of an intervention, admitting the allegations in plaintiff’s petition, and really joining her on the trial of the case below as one of the plaintiffs in the suit, seeking to establish his one-fourth interest, which was likewise held adversely by the remaining defendants. It seems this was an equitable petition asking for a sale and partition of the land among the owners in common. The defendants filed answers, denying any title in either one of the plaintiffs to any part of the land sued for, and claiming that each one had sold his and her interest in the same to R. M. Collier Sr., during the latter’s lifetime, and that defendants held under the will of R. M. Collier Sr. The plaintiffs claimed under the will of James G. Whatley, who it seems owned the land in dispute, and died seized and possessed of it in 1860, leaving a will. The particular tract of land was devised by his will to his widow, Susan J. Whatley, for her life, and she went into possession of the same under that will, and remained in possession until her death. When James G. Whatley died, he left surviving him his said widow, his son, James O. Whatley, and his daughter, the original petitioner in this case. The will further provided that at the death of the widow all the property willed to her should be equally divided among the surviving offspring of the widow, whether by testator or by any future husband she might marry. It appeared on the trial that Susan J. Whatley, the widow, married Robert M. Collier Sr., in the year 1865. 'She afterwards had by tins last husband two children, Robert M. and William E. Collier. Under the Whatley will, then, the petitioner, James O. Whatley, and these two Collier children Robert M. and William E., were designed to be owners of this land after the fféath of their mother, Mrs. Susan J. Collier, formerly Mrs. Susan J. Whatley, who died in the year 1895,leaving two children by her last husband, Robert M. and William E. Collier. In 1896 said William E- Collier died, leaving as his sole heirs his widow, Mrs.
This case was tried upon testimony introduced both by plaintiffs and defendants, and, after the charge of the court, the jury returned a verdict for the defendants; whereupon Mrs. Sallie E. Austin and J. O. Whatley, acting jointly, moved for a new trial. The motion was overruled, upon which ruling they assign error in their hill of ■exceptions brought to this court by them jointly as plaintiffs in error. The controlling issue of fact was whether or not, as claimed by the defendants, the plaintiffs had sold their interest in the land involved to R. M. Collier Sr. during his lifetime.
Whether or not Mrs. Austin' sold her interest in the property involved to E. M.-Collier Sr. was, of course, a vital question in the case. There was sufficient evidence in favor of the defendants to support the verdict against her; but the receipt which was introduced did not show upon its face that it referred to this or any particular land. We think, therefore, that the error of the court in refusing to allow her to testify upon this point entitles her to a new trial, it being for the jury to say, after hearing all the legal evidence offered upon the subject, what the truth of the matter is.
Another ground in the motion alleged error because the court, over objection of plaintiffs’ counsel, permitted certain witnesses by their testimony to contradict the plainly expressed terms of the written contracts under and by which the defendants claim that the plaintiffs conveyed the land in dispute to their testator, Robert M. Collier. The testimony of the witnesses referred to did not, in the light of this record, undertake to impeach the terms of any writing between the parties. On the contrary, it was mainly to establish the admissions of the parties plaintiff indicating that they had sold their interest in the land in dispute and received their money therefor from Robert M. Collier Sr. These admissions tended to establish the parol agreement insisted upon by defendants, which, if true, worked a complete equitable title to this land in their testator; and, therefore, his bequest to them of the property would convey an absolute title therein.
Judgment in part reversed, and in part affirmed.