92 Ga. 787 | Ga. | 1894
This was a claim ease in which Hull & Tobin, survivors of the firm of George R. Sibley & Co., were plaintiffs in execution, and Mrs. Ann E. Garrard was the claimant. The defendants in fi.fa. were Pierce & Culver, and L. Pierce and G. P. Culver. The jury found for the claimant, and the court granted a new trial.
1. It appears beyond dispute that in 1881 Beverly Amos owned a tract of land known as the “Lawson place.” On the first day of January, 1882, Amos conveyed this land to Pierce, Little & Co. On the 17th of March, 1883, W. F. Little, W. A. Buckner and G. P. Culver, members of the firm of Pierce, Little & Co., quitclaimed to Lovick Pierce, who was the remaining member of this firm, their entire interest in this land. On the 9th of April, 1885, Pierce and Culver made a deed conveying the land to George R. Sibley & Co., predecessors of Hull & Tobin, which deed was recorded on the 8th day of April, 1886. It does not appear why Culver’s name was affixed to this deeed, the entire title at the time of its execution being, apparently, - in Lovick Pierce alone; but this is immaterial, and indeed, in the argu
In 1887, Mrs. Garrard filed a bill against Beverly Amos, Lovick Pierce and others, alleging that the land in question was her property, and praying that Amos be required to make her a deed to the same, and that the two deeds first above mentioned be cancelled. Sibley & Company were not made parties to this bill, nor was there any allegation therein as to the deed from Pierce and Culver to them. At the October term, 1888, this bill was dismissed on general demurrer. In the argument here, it was insisted that this dismissal was an adjudication that the title to this land was not in the complainant, Mrs. Garrard; that this adjudication was binding upon her in the present controversy, and therefore, as between herself and Hull & Tobin, the question of title was res adjudícala. Whatever.may have been the effect of the dismissal of the bill as between Mrs. Garrard and the defendants in that bill, certainly nothing was thereby adjudicated as between herself and the plaintiffs in execution in the present case. It must be borne in mind that the conveyance from Pierce and Culver to Sibley & Co. was made before the bill of Mrs.
In this connection, the court charged the jury as follows : “ If you believe from the evidence that the bill filed by Ann E. Garrard against Pierce, Little & Co. and L. Pierce covered the subject-matter of this litigation; and if you further believe that the same issues involved in this case were actually adjudicated by the court in that case; and if you further believe that the present
2. The error above pointed out, being against the •claimant, would be no cause for setting aside a verdict in her favor. Upon the actual merits, however, the verdict was wrong, and the court properly granted a new trial. It appeared beyond controversy that at the time the deed of Pierce and Culver was made to Geoi-ge R. Sibley & Co., they took it without knowledge or notice of any kind that Mrs. Garrard either owned, or claimed to own, the land. They were, in the strictest sense, bona fide purchasers for value and without notice of the secret equity set up by the claimant. The evideuee also shows conclusively that neither Mrs. Garrard nor her husband at that time had, or had ever held, the legal title to the land. The fact that they were living together upon it was the only circumstance tending in the least •degree to convey notice that there was any defect or infirmity in the title conveyed to Sibley & Co. This fact was not of itself sufficient to defeat the perfect legal
"We have not stated nor discussed the facts relied upon by Mrs. Garrard in support of - her equitable claim to the land. It is not necessary to do so, because, even if it be true that, as against Pierce, Little & Co. or any of the members of that firm, her equity would be perfect, we are satisfied that, under the undisputed facts presented by the record, it could not, for the reasons stated, be sustained as against the plaintiffs in execution. The evidence demanded a finding by the jury that the property was subject to the execution, and a verdict to the contrary cannot stand.
3. The court, over the objection of counsel for the plaintiffs in execution, allowed Beverly Amos to testify that when he made the deed to Pierce, Little & Co. in 1882, he thought it was a mortgage given to secure a debt for four hundred dollars. The deed was absolute on its face, and expressed a consideration of twenty-five
In the motion for a new trial, error was assigned upon the admission of other evidence, but it does not appear what, if any, objections were made to the same when offered, and therefore, the alleged error cannot be considered.
4. The court below was doubtless satisfied that the verdict was contrary to law and the evidence, in which opinion we concur, and the granting of a new trial is fully approved. Judgment affirmed.