5. In one ground of the motion for new trial error is assigned upon the following charge of the court to the jury: “Referring again to the question as to whether the deed referred to from J. N. Price to J. C. Price was a forgery, this involves a question of fraud; and I charge you in this connection that fraud may not be presumed, but, being subtle in its nature, slight circumstances may be sufficient to carry conviction of its existence.” It is insisted that this charge was inapplicable to the issues in the case, and misled and confused the jury. In Smith v. Stone, 127 Ga. 483(3), 487 (56 S. E. 640), it is held: “Upon the trial of the issue of forgery . . when a registered deed is offered in evidence, nothing is involved except the factum of the deed assailed; and when the uncontradicted evidence shows that the deed was executed, a finding that it was a forgery is unauthorized, notwithstanding there may be evidence tending to show that the grantee had, by his conduct and sayings, estopped himself from asserting title under the deed, as against certain persons.” We agree with counsel for the plaintiff in error that the charge was inapplicable to any issue in the ease, but we can not say that it either misled or confused the jury. The court clearly stated the issues to the jury, and instructed them that the burden was upon the plaintiff to show that the deed from J. N. Price to J. C. Price was in fact a forgery. In
The evidence authorized the jury to find that-the plaintiiks intestate died in possession of the land in controversy, that tae defendant claimed under the plaintiff’s intestate, and that the deed from the plaintiff’s intestate to J. C. Price was a forgery. None of the assignments of error upon the rulings of the court in admitting or rejecting evidence, in charging the jury, or in failing to charge, assigned as erroneous in the motion for new trial, will require a reversal of the ease on the main bill of exceptions.
6. The grant of the new trial on the issue of mesne profits, assigned as error in the cross-bill of exceptions, is within the rule that the first grant of a new trial will not be disturbed unless the evidence demands the verdict rendered, nor will the court undertake to make any ruling with resvecl tc- hie reason assigned by the trial judge as the basis of his action, although the new trial be granted upon a special ground of the motion. Van Giesen v. Queen Insurance Co., 132 Ga. 515 (64 S. E. 456); Ballenger v. Ballenger, 147 Ga. 351 (94 S. E. 237). It goes without’saying that the verdict for $1960 mesne profits ivas not demanded, under the rule recognized in this State. See McCarthy v. Lazarus, supra.
Judgment affirmed on both bills of exceptions.