119 Ga. 92 | Ga. | 1903
This litigation has heretofore been before this court, and a new trial was granted. See a statement of the case in 116 Ga. 28, together with the rulings then announced. On the last trial of the case in the superior court, amendments to the pleas of the defendants were offered and allowed over the plaintiffs’ objection. During the trial the plaintiffs offered to prove by J. O. Bentley, husband of Lee Anna Bentley, that at no time had he and his wife intended to ratify and adopt the sale of the land in dispute to the administrator, but throughout had intended to rescind said sale and recover her interest in the property ; which testimony the court excluded as irrelevant and illegal. When the introduction of evidence in behalf of the plaintiffs had been concluded, the court, upon motion of the defendants below, granted a nonsuit as to Lee Anna Bentley, on the ground.that she had barred herself of the right to recover. To these several rulings the plaintiffs ex
It is recited in the bill of exceptions that the trial judge gave to the jury appropriate instructions as to the act of 1897, for the set-off of improvements made in good faith where the possession of land recovered has been held bona fide, and also as to section 5087 of the Civil Code, as applicable when the possession has not been such as contemplated in the act of 1897. Upon the verdict the court decreed a recovery by the plaintiff Carey of her undivided interest in the land, without mesne profits, and she excepted to the decree and alleged that it should have included a finding in her favor for her proportionate part of the mesne profits found by the jury. It is also to be remembered that the plaintiffs’ petition concedes that the defendant Moore, administrator, who is alleged to have bought the land in dispute at his own sale, had paid to the several heirs their shares of the price paid for the land, to wit, $800; and the petition also proposed to pay back to the defendants the proportion of said purchase-money received by the two plaintiffs, including the plaintiff Carey. This being an undisputed item necessary to the determination of this case,- the trial judge, it is to be presumed, considered it in framing the decree. His honor had presided on the trial, had instructed the jury as to the questions involved, had the pleadings before him, and was better capable of determining what decree'should be rendered under the circumstances stated. We are not sure this court could have done better had it sat in the place of the superior court. In the light of the verdict rendered, it may be that other and fitter questions ought to have been framed to elicit from the jury whether their finding of mesne profits was based on their estimate of the income from the property as improved. It may also be a question as to whether they had in mind that provision of section 5087 of the Civil Code, which provides that, in allowing a trespasser to set off improvements
In the brief filed by counsel for the plaintiffs in error, it is recited that the jury appended to their answer to the fifth question a finding of $59.59 for the plaintiff Carey, and it is stated that the judge treated this finding as surplusage. We fail to discover this finding in the transcript of the record or in the bill' of exceptions, and therefore can not consider it.
Judgment affirmed.