24 S.E.2d 303 | Ga. | 1943
Rulings on assignments of error in motion for new trial after verdict in ejectment suit. Remand of the case on sole issue mesne profits to which plaintiffs might be entitled.
1. The court did not err in admitting in evidence the deed, forming the basis of the plaintiffs' title, from Mrs. Laura F. Jackson to Mrs. Alice A. Deck, in which, as was held when this case *406 was last before us, a conveyance was made of the life-estate to Alice A. Deck, "with remainder over at her decease to the heirs of her body," of which the present plaintiffs constitute two children. There is no merit in the ground of objection that the deed was inadmissible because no consideration is recited in the deed, since it appears that the deed recites on its face, and the grantee agrees by a written statement entered on the back, that it was given for the purpose of correcting what might have been a mistake in a previous conveyance, so as to make plain the original intention of the grantor to convey only a life-estate to Mrs. Alice A. Deck, with remainder over to her children. Such being true, and all parties having an interest in perfecting the true intent of the parties to the deed, the consideration in the previous deed, which is set forth as constituting the consideration of the second deed, would operate to support the second conveyance; and no further consideration, other than to make clear the original intention and to correct a possible error in the original instrument, was required.
2. As to the title of the present plaintiffs, their evidence being the same as in the previous litigation, and nothing else appearing to militate against the same, the ruling made in the previous decision became the law of the case, as distinguished from res judicata; and the plaintiffs were entitled to recover their interests in the land as sued for, together with such mesne profits as they could prove.
3. The introduction of the record of the litigation in the year 1889, which has been set forth in the previous adjudication of this case, even though irrelevant under the effect of the previous ruling of this court, could have worked no possible injury to the defendant; and therefore its admission over objection does not constitute reversible error.
4. On the previous trial, after a verdict was directed in favor of the other three plaintiffs as to their claim of title, and a verdict was directed against the present two remaining plaintiffs as to their claim of title, the question of mesne profits as to the other three plaintiffs was determined by the jury in a named amount; but no recovery, of course, was had for mesne profits by the present two plaintiffs, against whom a verdict as to title had been directed. On the second trial, after the reversal of the direction of a verdict against the present two plaintiffs as to title, they sought after *407
proving title, to recover mesne profits by merely proving the amount which had been recovered by the other three plaintiffs, under the rule of res judicata. The court admitted this evidence, and excluded evidence for the defendant in contradiction of such value of the mesne profits, and directed a verdict for mesne profits based upon the previous verdict. No recovery of mesne profits having been had by the present plaintiffs in the previous trial, upon the de novo trial of the case it was incumbent upon them not only to prove their title, which they did, but also to prove the value of any mesne profits to which they were entitled.Bourquin v. Bourquin,
(a) It has been held that "where, in an action at law to recover a certain sum alleged to be due on several items of indebtedness, a verdict is rendered for the plaintiff in a stated sum . ., and a new trial is granted on certain grounds of the motion which relate to some of the particular items of indebtedness, and refused as to others, the court is without power, in ordering a new trial, to restrict the case to the issues bearing on the items of indebtedness referred to in the grounds of the motion upon which a new trial is granted, to the exclusion of other issues made by the pleadings." Walker v.Jones, supra. This court, however, is "authorized to make a final disposition of a case, and to give it such direction as is consistent with the law and justice applicable to it, and as will prevent the unnecessary protraction of litigation." Mell v.Mell,
Judgment reversed, with direction. All the Justices concur,except Reid, C. J., absent because of illness. *408