130 Ga. 243 | Ga. | 1908
(After stating the facts.)
Counsel for the plaintiff in error takeS the position “that the court had adjudged, in the face of the demurrer raising the question in this very case, that the pleadings were sufficient to entitle plaintiff to the accounting and special decree he asks.” We do not think so. The only demurrer filed was a general demurrer aimed at the equitable petition as a whole, the claimant moving “to dismiss” the entire petition. The overruling of the demurrer was not an adjudication that the plaintiff was entitled to every
If an issue like that which we have suggested above had been made, and if the evidence touching that issue had been sufficient to authorize a finding for or against Mrs. Gibson upon that question, and the jury had rendered a verdict against her, then material errors in the charge hurtful to her and the plaintiff would have required the granting of a new trial. But, because of the nonjoinder of Mrs. Gibson as a party, that issue was not properly in the case.
The equitable petition of the plaintiff, however, contained an allegation which, if sustained by the evidence, would have required :a finding in favor of the plaintiff, and that was an allegation of •a tender by Mrs. Gibspn; because, if such a tender had l^een made by her, she would have been vested with a perfect equity in the land, and this would have been a leviable interest. While the allegation of tender, had it been attacked by a special demurrer, might have required amendment^ it was sufficient to withstand a general ■demurrer, it being alleged, that, “On the 15th day of November, 1902, she [Mrs. Gibson] offered, to come to a settlement with said Wilson in reference to said rents, and tendered to him any balance that might be due said Wilson in respect of said land and the incumbrance thereon; but said Wilson refused to come to any settlement or to receive any money, but claimed to have become the absolute owner of said land.” But the contention of the plaintiff in his pleadings, upon the question of tender, can not avail him in the motion for a new trial, for the simple reason that there was mo evidence whatever to sustain him in it.
Eliminating the contentions of the plaintiff, that upon an accounting kit would appear that Mrs. Gibson had a leviable interest in the land, and that because of a tender she was revested with an interest that was subject to the plaintiff’s execution, there remains in the case only one theory of the plaintiff upon which he would have been entitled to a verdict finding the property subject, and that is that the conveyance by Mrs. Gibson to the Equitable Securities Co.j and by the latter to the claimant, was but a scheme
Counsel for plaintiff in error finally insist that there was “a right in Mrs. Gibson to take at least 100 acres of land and probably 250, if not complete, at least to be completed on the payment of" some small amount,' which her creditors may subject.” We do-not think that this contention has strength or merit. Under no-
The plaintiff had levied upofi the land described in the levy in its entirety, and the question for the jury to decide was whether the defendant in fi. fa. had a leviable inteiest in that land. Failing to adduce evidence authorizing a finding that she had, he failed to make out a case; and the verdict adverse to him was one brought about, not by errors of the court’s charge, but by the irresistible force of the evidence upon the controlling issues in the case.
Judgment affirmed on main bill of exceptions. Cross-bill of exceptions dismissed.