1. It was not alleged that the matter of the amendment was improper, but only that the court should not have suggested it.
2. The caution to the jury was neither inappropriate nor ill-timed.
3. The judge stated to complainant’s counsel that he did not wish them to argue the points of law, and would hear from the other side. The same points had once been argued before him on authority. Counsel for defendant insisted that complainant’s counsel should furnish and read the authorities in the same manner as if tiiey were to be used and commented on in conclusion. The judge declined to exact this, but said counsel for defendant might read any authority they thought proper.
4. The 4th head-note should be read in connection with the 4th point in the reporter’s statement, which sets out what the judge said.
5. The interruption, as appears from the judge’s notes in the record, was prohibited by denying to defendant’s counsel the right to carry on a dispute with counsel addressing the jury. There seems to have been no appeal to the court to check any misrepresentation of the testimony. The judge called the interrupting counsel to order, and put an end to that method of interruption. He did not state to the jury which of the counsel was correct in representing the testimony, nor does it appear that he was requested to do so. What he said to the jury on the subject appears, substantially, in the head-note.
6. The 6th head-note upholds the charge of the court in reference to the record of the deed made by Disharoon. Even a proper record of that deed would not have been notice that its terms applied to property purchased with the proceeds of the property described therein, to a person ignorant of the fact that the proceeds had been so invested : 51 Georgia Reports, 296-7.
7. It seems that, in point of fact, the proceeds of the prop*519erty covered by the original trust deed made by Disharoon, were invested in that covered by the deed from Mosely to Eeynolds, trustee; but the latter deed, instead of following the former in respect to the trusts declared, varied from it in this manner: The former declared an estate in trust for Mrs. Disharoon (afterwards Mrs. Page,) during her life, with remainder to her children, while the latter conveyed a fee simple estate in trust for Mrs. Disharoon and the heirs of Disharoon, her deceased husband. There is no doubt that heirs, here, meant children ; and as there was but one child, namely, the daughter who afterwards married Bazemore, and is now the plaintiff in error, the mother and child were, under this deed, tenants in common. Such was the charge of the court.
8. The 8th head-note needs little or no expansion. By the terms “patent interest,” as used therein, is meant any interest appearing on the face of the two deeds conveying to the trustee the property in dispute, each deed being read as applying alone to that part of the premises which it conveys. Thus, Mrs. Bazemore’s patent interest under one of the deeds is a tenancy in common, and under the other a remainder, as is held in this and the next preceding head-note.
9. Ou the supposition that there was surplus income, and that it was invested, the property in which it was invested belonged, pro tanto, to Mrs. Page, absolutely; and the ninth head-note states fully the law of the case as to that point.
10. The ordinary rule as to improvements made by one holding possession bona fide against the true owner is stated in 2d Story’s Equity, sections 1237, 1238, and 5th Georgia Reports, 289. That rule seems to be that, neither at law nor in equity, in the absence of fraud or consent on the part of the owner, can the latter be forced to make compensation for the improvements. The exception recognized is, when he himself comes into equity aud asks its aid to enforce his title; in which case, equity, in decreeing the relief, will require him to account for improvements. Notwithstanding the decided disapprobation expressed by Judge Nisbet, in 5th Georgia *520Reports, supra, to restricting the exception within such'narrow limits, we are not aware that any distinct enlargement of it has been established. As between tenants in common, where one has held out the other, ignorantly believing himself sole owner, and, pending such exclusion, has made permanent improvements, the co-tenant, unless he resorts to equity himself, cannot be compelled to contribute anything for the cost or value of the improvements, beyond such portion of the rents as may be chargeable to the party erecting them. This is the general rule of adjustment between improvements and mesne profits: Code, sections 2906, 3468; 9 Georgia Reports, 440; 39 Ibid., 328; 47 Ibid., 540.
11, 12. The head-notes eleven and twelve are so ample that it would be a waste of time and space to enlarge upon them.
13, 14. When Bazemore and wife were married the second time, the old law prevailed touching marital rights in the wife’s property. It was prior to the reformation brought in by the act of 1866. On the second argument of the case before this court, the point was discussed as to the effect of the previous divorce and of that marriage on the property now in dispute. The position was assumed, that, as the first coverture was dissolved, the trust established by Bazemore in behalf of his wife, ceased as to the life estate to be enjoyed by her; that the estate became her own, divested of the trust; and that, upon the second marriage, it passed to her husband in virtue of his marital rights. What effect on this particular case such á transmigration of the title would have had, need not be considered. We think it clear that- the trust adhered to the property and operated during the second coverture, just as it did during the first. The debts of the husband against which the property was to be protected, were any debts that he might contract, not simply those which might be contracted while a particular coverture subsisted; and the remainder to children was in behalf of any children she might bear by him. Both debts and children might come into existence after the first coverture terminated, and thus *521the purposes of the trust were not necessarily accomplished when the parties were divorced. On the general subject, see the following cases, and the authorities therein cited: 11 Georgia Reports, 379; 12 Ibid., 195; 14 Ibid., 403; 15 ' Ibid., 123; 3 Bac. Ab., 438.
Judgment reversed.
AI-generated responses must be verified and are not legal advice.
