34 S.E.2d 658 | Ga. Ct. App. | 1945
Lead Opinion
Under the record as here presented and the law applicable thereto, the court erred in granting a nonsuit.
As the case is here on an exception to the grant of a nonsuit, it will be necessary to set out the evidence that was introduced upon the trial, which is as follows: "S. R. Beasley, called by plaintiff for cross-examination: My name is S. R. Beasley. I knew Emma Kitchens in her lifetime. She lived, I will say, three quarters of a mile from me; I have not measured it. I have been around her place occasionally, going on over to the other part of the place there. As to whether I ever, in the last several years, went over there to see her about buying this three acres of land from her, well, passing on around about there, I didn't go specially to see her, and one of the neighbors told me that she wanted to sell it and I offered to buy it; I asked her about buying this place. I saw her deed to the place. Mrs. Wilkerson, I think, made her that deed. I think [she] made it to Mrs. Emma Kitchens. That house on that place was 10 by 20, the house had one room to it, except *654 they have got some little strips of thin plank down at the sawmill — the sawmill was just above there — and put a little partition, and I have got some of the material downstairs. The chimney was of brick, old second-handed brick, and the roof, there was tin roof on that building; there was me and a darkey that tore that house down and moved it away; it was done under my direction, and I did it on account of there was so much burning around there; there had been one house burned right there where that one was, and just across the road one of mine had got burned down. I don't know exactly how long that house has been built, I couldn't tell you exactly how long; I think it had been built about ten years. Mr. Steve Huff and Mr. C. W. Wilkerson built the house, and Mr. Wilkerson is dead now. Mr. Huff promised me he would come but he has gone off somewhere. Emma Kitchens did live in that house, and nobody ever lived in it but her as I know of. I did talk with her on one occasion about buying this property from her, and she told me she would see me about selling it. That house is on the Stapleton-Bethel Church Road; the road is on the north side of the property; my land bounds this three acres of land on the north; the road is on the north and I own it on the east, south, and west. I have been paying taxes on it ever since my wife's stepfather died. As to how many acres that tract contained, the deed says ninety-four acres; but according to that deed the tract where the house is, that deed says three acres; it don't give the description; it was in the 1460th district. As to whether it is known as the Emma Kitchens place, she lived there awhile. When I am speaking of that deed that says three acres, I am referring to that record deed."
Mrs. Eloise Chalker Hatcher testified: "My name is Eloise Chalker Hatcher. I am a daughter of Emma Kitchens. I know where the house was that she owned; that is the Emma Kitchens house. My mother, Emma Kitchens, has been dead nearly three years. That house is not still standing there, it is gone. I have talked to Mr. S. R. Beasley about it; I went down there to demand that he pay for it and he said that he had offered to buy it from her several times and that she refused to sell it. He admitted taking it down, and he said, the only reason, he said, was that he had let her have two or three gallons of syrup and that if anybody ought to have it he ought to have it by it joining his land; he did *655 not claim the house as his property; he did not say it was his house, he didn't claim it at all. When I demanded that he pay for it, all he said was that he had given my mother some syrup. I have seen the deed conveying this property to my mother. Dr. John Glover made that deed to my mother. I had that deed in my possession; I kept it about three months and my brother left from Sparta; he was staying with me. My brother, Martin Glover, got the deed. My brother is not living now; about a month after he left home he died in Augusta at the N. Y. A. I did not find the deed in his effects after his death; they promised to send me his things but they couldn't find them and they have not sent me the things, and I didn't know the people he was working with, and I haven't seen that deed since. I don't know whether it was recorded or not. Dr. John Glover made the deed to Emma Kitchens; he made the deed to my mother in her lifetime and then to her children. I don't know where that deed is now. There was three acres of land described in that deed, and Dr. John Glover made the deed. I don't remember when the house was built. I am twenty-one years old now. My mother lived there about ten years; she was in physical possession of it. I never heard of any dispute about her title. One of my uncles and my husband and my brother were with me when I went to demand that Mr. Beasley pay for this house, and he said he had been trying to buy it from my mother and she wouldn't sell it to him; that he had given her some syrup and that if anybody was entitled to the house he was. He admitted moving the house. Mr. Beasley did not tell me that he had a deed to this property. He did not tell me that he had been paying taxes on it all the time along. I don't know whether the description read me by Mr. Barwick will cover that land or not. I don't know who owned the land around it. The description he read me being as follows: `Ninety-three acres, more or less, in the 1460th district of Jefferson County, bounded on the north by lands of S. R. Beasley, east by lands of Mrs. McNair, south by lands of W. F. Stapleton, and west by the lands of Mullis Hadden estate.' I don't know who owned it before; I think Mr. Wilkerson owned it before Mrs. Emma Kitchens got it, and before John Glover got it, Mrs. Mary Wilkerson owned it before John Glover got it. I don't know whether she owned ninety-four acres there or not; I don't know how much she owned, but I think she owned *656 it before Mrs. Kitchens did, and the deed that I say I saw was made by one John Glover and made to my mother her lifetime and then to her children; her children were Martin and myself, and my younger brother; there was three of us. As to why Martin Glover carried this deed off, it was because he wanted it, I guess; I don't know what he wanted with it but it stayed there at my house about three months and he wanted it. I don't know the date of that deed now; I have no idea; I have no idea anything else about it; I could not tell what property it conveyed; I could not tell what boundaries were in it; I could not tell whether it was recorded or not; I do not know whether it was recorded or not; there was nothing that I could tell about that deed except I saw the deed one time. As to who was the witnesses to that deed, there was a Walden fellow was a witness on it but I done forgot his first name. I don't remember who were the other witnesses or witness; I can not tell us what year it was made in or anything about it. The house was torn down at the time I came to see Mr. Beasley and loaded up in a wagon out in his yard, and he had also made his doorsteps out of the brick in the chimney. I don't remember what day it was I went to see Mr. Beasley, but I know it was on Sunday. I went to see him twice and he wouldn't come out the last time. As to whether Mr. Beasley has been sick, I know he wasn't sick that day. I went to see him once and he wouldn't come out. I have read that deed and it is to three acres of land, and it was made to my mother her lifetime, and Dr. John Glover signed the deed, and after my mother's lifetime it was made to her children. I read the deed or looked over it. I don't know anything about the description [of land]; I didn't think anything about that. I know it was about three acres. I imagine like houses are now that house would be worth about $300; it had two rooms in it, and it was about 20 by 20 and 10 by 10; it didn't have any porches; it had one chimney and it was made out of brick, and the house was covered with tin. That deed from Dr. Glover that I testified about, it called for three acres. As to whether I recall who owned the land all around it, I think Mr. Tol Beasley there owns the land all around it, Mr. S. R. Beasley here. It touches the road on the north side and the deed said there was three acres. As to how the deed described the three acres, well, I have forgotten just how it was, the deed said there was three acres there and the deed said it *657 was Mr. Beasley's land all around it except one side; it said that the road was on the north side; that is what the deed said, and the deed said it was in Jefferson County. I don't know whether it said the number of the district or not. While I was on the stand awhile ago, I said I didn't recollect all that the deed said."
Mrs. S. B. Kitchens testified: "These children who have brought this suit in this case are my grandchildren. Emma Kitchens was my daughter. She is dead. I know where she lived in her lifetime, and her property; she lived down there at that house in question. I have been there. That house is not there now. As to how she acquired title to that property, where she got it, John Glover bought three acres and built her a house on it and deeded it to her. I have seen the deed; it stayed at my house while she lived there about three or four months. I have read it. Whenever she went to move up yonder she came up and got the deed. As to whether or not it was recorded, yes, sir, it was by John Glover and a Walden, and I have forgotten his given name. Dr. John Glover was the one who deeded the property to my daughter. I do not recall who were the witnesses on it. I have had so much sickness I can't remember. As to what property it described, it just said three acres of land and a house. As to where that deed is now, well, Martin taken it off down yonder to the N. Y. A., that is one of her sons; he is not living now; he is dead; he had it in his possession when I last saw it; I have not seen it since his death. That deed, I kept it for about three months; it might have stayed at home longer than that; she was afraid to leave it and go off at work; it described three acres of land. I have done forgot whether it was recorded or not, I reckon so; I don't recollect now. I didn't say awhile ago it was recorded; I said John Glover's name and Walden's name was to it and I read them. That house had two rooms and it was covered with tin. My daughter has been dead about three years. The house was torn down after she died. I expect she lived there over ten years. She was the first person that lived in that house; John Glover built that house for her. My daughter died three years ago, that was in 1942; she was living up above Gibson, towards Mitchell or Edgehill at the time she died; she had been living there long before she died but I have forgotten how long; I have forgotten what month she died in she moved *658 off up there and died the same year she moved up there; it wasn't a year after she moved up there before her death. Emma Kitchens was her maiden name; she was my daughter. She had been married three times; she first married Elton Chalker, and then she married, I forget the name of the man she married, and then she married George Denton; after she married Mr. Chalker she married Denton; she didn't marry anybody else. Denton was with her when she died. But I think she married a man, it seems like it was a Beasley — I can't recollect. I know who my daughter married but I done forgot now, sure I have. My daughter did not marry John Glover. He just got in and contact her like a heap of other old men does. As to whether any of those husbands are living now or not, I just now told you George Denton was with her when she died, living with her when she died, and her first husband is living; his name is Elton Chalker; he lives over there about Bethel. And this particular deed was made by John Glover. John Glover bought the land and built the house and give her a deed her lifetime. I reckon he bought the land; he built the house on it, and he said he bought it, and she said he bought it. I don't know how long it has been. I have been having so much sickness in my family I can't recollect nothing. It wasn't in 1932 that he built the house; it was further back than that. . . I ain't never looked for that deed I am talking about since; I ain't been down there to look for it. They were sent to Martin Glover's; my daughter ain't never got them; they were to send his clothes back to Eloise, his sister, but they ain't never sent them. I never did go to the hospital to look; I never went down there, but they told us at the graveyard that they were going to mail them back to her, and they ain't done it. I ain't never been after them; I had no way to go. I testified that this deed we can't find was from John Glover to Emma Kitchens her lifetime and at her death to her children. Roy Chalker, Eloise Chalker Hatcher, and Benny Denton, they are her children. As to who owned this three acres of land and that house, as to who owns it now at the mother's death, her heirs own it; those three people are her heirs. Martin Glover was a half brother to these three children I have just named. . . I sent Mr. Thigpen here, our lawyer, to Augusta to try to find that deed." *659
Roy Lee Chalker testified: "I am a son of Emma Kitchens; my father was Elton Chalker. I went to see Mr. Beasley about moving this house; my sister and her husband were with me; that was my sister, Mrs. Hatcher. Mr. Beasley said he moved it, and we asked him to pay for it, but he didn't pay us for it; he did not say that the house was his; he didn't say who the house belonged to. He didn't say that he tried to buy it from anybody; he didn't say that he tried to buy it from Emma Kitchens as I remember; I don't remember him saying that; if he said it, I don't remember it. I went there on two occasions to see him, but he did not come out both times and talk with us. That house is worth around $300 I imagine; it had two rooms to it, I imagine about 20 by 20 and 10 by 10; it was covered with tin. My mother lived there about around ten years, I imagine. I don't remember what year the house was built, but I remember the time it was built. Nobody has ever lived in the house except her. Mr. Beasley did not tell me that he had deeds to all this property; he didn't say that. I guess the description that Mr. Barwick read me to ninety-three acres of land in the 1460th district, bounded by S. R. Beasley, east by Mrs. McNair, south by Mrs. W. F. Stapleton and west by lands of the Mullis Hadden estate would cover the land, I guess so. I don't know whether it does or not. As to whether I know whose property bounds this three acres of land around it, Mr. Beasley, I think is one. I don't know about the rest of them. I am not positive myself as to the description."
Casey Thigpen testified: "I wish to state that I went to Augusta after I was employed in this case, and made a diligent search for this deed. This Martin Glover was attending the N. Y. A. and got sick down there and died. And I was told by people in authority, I don't recall the names, that they bundled all of his things up and sent them to his sister at Sparta, and his sister from Sparta testified that she never received them."
The rule is, in passing on a motion for a nonsuit, that the evidence should be construed most favorably to the plaintiff; and if, when so construed a prima facie case is made out, a nonsuit should not be granted. Eubanks v. Mullis,
This is a trover suit for the recovery of a described house after it was detached from the realty. It was held in Kennedy
v. Smith,
The defendant tried a number of times to buy this property from Emma Kitchens, but she refused to sell it to him, and, after she moved out of the house, and shortly after her death, he tore the house down and removed it, although he did not claim to be the owner of the property, and the only reason he gave for doing this was that he was afraid the house would be destroyed by fire. There was evidence as to the value of the house, demand and refusal on the part of the defendant to deliver the same to the plaintiffs or to pay them therefor.
To support an action of trover it is necessary for the plaintiff to show either title in himself at the time of the commencement of the action, prior possession, or the right of immediate possession. *661 Southern Railway Co. v. Strozier,
Pursuant to the act of the General Assembly, approved March 8, 1945, requiring that the full court consider any case in which one of the judges of a division may dissent, this case was considered and decided by the court as a whole.
Judgment reversed. Broyles, C. J., MacIntyre, Gardner andParker, JJ., concur.
Dissenting Opinion
I think the grant of a nonsuit was demanded. The petition in substance alleged that the house before detachment was located on three acres of land belonging to the plaintiffs. The ruling on the demurrer was to the effect that the petition sufficiently described the property sued for — the house. The petition did not contain the description in the deed referred to in the evidence. If it had there would be some semblance of reason why the ruling on the demurrer should be the law of the case. *662
But as the case stands the petition alleged that the defendant converted their property. The title to the house depended on the title to the land on which it was located in the absence of an agreement treating it as personality. The evidence did not show that the house belonged to them or was ever in their possession or that they had the right of possession. Their claim to whatever right they relied on was through the deed to their mother. The description in this deed was so indefinite as not to describe any particular three acres of land. The description bounded the land on the north by a road and on all other three sides by one property owner. It is impossible to identify the three acres to be conveyed without some key or additional proof. The three-acre tract might have been six acres wide or it might have been a half acre wide. One could lay off three acres along the road at various points and everywhere he laid them off they would fit the description. The deed was insufficient even as color of title because it is impossible to locate the three acres. Harwell v. Foster and Harwell v. Reese,
