37 Ga. App. 301 | Ga. Ct. App. | 1927
It. E. Burt brought a suit against Mrs. Missouri Gooch and others to partition lands by sale. Mrs. Gooch alone defended. The trial resulted adversely to the plaintiff, and he excepted to the overruling of his motion for a new trial. The plaintiff predicated his title or common tenancy upon deeds made to him by the sheriff on October 7, 1924, in pursuance of a judicial sale of .the respective interests of Charlie and Raymond Gooch in the home place of their deceased father, W. H. Gooch, who died intestate on July 10, 1905, leaving as his heirs his widow, Mrs. Missouri Gooch, and eight children, including Charlie and Raymond. On July 19, 1905, four of the children made a deed purporting to grant to their mother, Mrs. Gooch, a life estate in their respective interests in the place, but at this time Raymond and Charlie were minors, each under the age of ten years, and did not join in this deed. Although the other remaining children appear to have signed the deed in the meantime, there was no attempt by Raymond or Charlie to become parties thereto until August 2, 1924. In March, 1922, judgments were obtained against Raymond and Charlie, and executions issued thereon were entered on the general execution docket in April, 1922. It was under these executions that the interests of Raymond and Charlie were levied on and sold by the sheriff, and these interests constituted the subject-matter of the present controversy. Mrs. Gooch claimed that she had acquired a life estate in the shares of all the children, and therefore that the plaintiff would not be entitled to a partition of the property until after her death. She sought to show that on August 2, 1924, her son Raymond joined in the deed, of July 19, 1905, both for himself and for Charlie, by adding their names to the deed, and that he, Raymond, had authority to sign for Charlie by virtue of a letter written to him by the latter in Texas, telling him to “sign that deed.” The deed was recorded promptly after its execution by the original signers, but was not rerecorded after the purported execution by Raymond and Charlie. The deed and letter were both introduced in evidence over objection. It was stipulated in the record that the issue to be submitted to the jury was “the effect of a parol
The verdict should have been set aside upon the general grounds of the motion for new trial. The fact that Mrs. Gooch may have owned an undivided interest in the property as one of the heirs and may have acquired a life-estate in the interests of other heirs would not prevent a partition of the lands at the instance of the plaintiff, if he owned title to the interests of Raymond and Charlie, unencumbered by the life estate. One who holds title to an undivided interest in land may not, in a suit to partition the land, be defeated merely because the party against whom the partition is sought may own a life estate in other undivided interests. Teasley v. Hulme, 150 Ga. 495 (104 S. E. 151, 12 A. L. R. 641); Rutland v. Ridgdill, 153 Ga. 212 (112 S. E. 278). Nor will a partition be denied because the defendant may have erected valuable improvements upon the property, although the person making such improvements may, in certain circumstances, be entitled, to certain equities because of the same. Smith v. Smith, 133 Ga. 170 (10, 11) (65 S. E. 414); Walton v. Ward,
The deed of July 19, 1905, and the letter from Charlie to Eaymond, purporting to authorize him to “sign that deed,” should both have been excluded from evidence. Neither of them illustrated any issue in the case; and furthermore, the deed was never recorded and there was no proper proof of its execution as to Eaymond and Charlie. Civil Code (1910), §§ 4210, 5828, 5833, 5834. In addition to this, the letter was too indefinite to be the basis of authority to convey land. Whether the deed and the letter were inadmissible for other reasons than those stated need not be decided.
The court instructed the jury that the proceeding brought by the plaintiff was to partition the land and to have the same sold and the proceeds “divided between the plaintiff and the other heirs,” and that objections had been made “by Mrs. Gooch, the defendant,” and that the other heirs had filed no objections “except sustaining her view of it.” Mrs. Gooch, in her answer, had contended that the proceeding would have the effect of evicting or removing her from the possession of her alleged life estate, and, in view of this allegation, the plaintiff excepted to the above charge upon the ground that it was susceptible of the construction that the proceedings were intended to evict Mrs. Gooch, and that she was not one of the heirs who rvould share in the distribution
There is no merit in any of the grounds of the motion for a new trial complaining of omissions to charge. In view of the stipulation as to the issue to be submitted and in further view of the limited scope of the evidence introduced, none of the instructions which it is claimed the court should have- given would have been pertinent. For the reasons given above, the court erred in refusing a new trial.
Judgment reversed.