155 Ga. 1 | Ga. | 1923
(After stating the foregoing facts.)
We shall first deal with the exception to the order of the court overruling the demurrer to the answer. The first ground of the demurrer objects that the third paragraph of the defendant’s answer does not state what undivided interest, if any, plaintiffs’ lessors had or acquired in the land sued for; the statement made being only that such lessors acquired an undivided interest. In response to this special demurrer the defendants amended by alleging: “the exact amount .of such undivided interest, if any, being unknown to defendants, and defendants being without sufficient information to allege what undivided interest, if any.” We think the amendment was sufficient to authorize the court to overrule the demurrer to this paragraph of the answer, be
In the second ground of the demurrer it was complained that the third division of paragraph three of the answer which sought to set up a partition of the land originally purchased by Parker and Harris failed to state when the land was partitioned, between 'whom land was partitioned, how and in what manner the same was partitioned, and what lands were received by the parties respectively. The demurrer also complained that this paragraph of the answer failed to state that the 300-acre tract described in paragraph three was all the land received by J. M. Harris, Mary E. Harris, Mary E. Green, and Ina Adams, and did not set forth with sufficient particularity and clearness any of the particulars of the alleged partition to put the plaintiffs upon notice of the facts sought to be proved by the defendants, so as to enable the plaintiffs to meet the issue sought to be made. Defendants attempted to meet the demurrer by amending paragraph 3, by adding after the word “plaintiffs,” and before the word “they,” near the last of said paragraph, the following words: “A. J. Eountree, by parol agreement which was duly executed by J. M. Harris, trustee for Mrs. J M. Harris, entering into exclusive and adverse possession of the 300 acres of land described in said paragraph, and A. J. Eountree entering into exclusive and adverse possession of the remainder of' said land, including the land sued for.” This amendment gave all the information called for by the special demurrer, except that it did not state whether the 300-acre tract was all the land received by the lessors of the plaintiffs, and does not set forth with particularity and clearness some particular information which the plaintiffs might have been entitled to, had the demurrer pointed out what was desired by specifying in what respect the answer was deficient. In the absence of a more specific special demurrer, we do not think the defendants were bound to say in so many words (or more plainly than by the inference suggested by the statement that 300 acres was accepted) that the 300-acre tract was all the land received by the lessors of the plaintiffs. From the statement that the plaintiffs’ lessors received 300 acres of land (construing the pleadings most strongly against the pleader) it must be inferred that this was all they received. The nature of the de
In addition to the general grounds, the 4th, 5th, 6th, 7th, 8th, and 9th grounds of the amendment to the motion for a new trial raised the following questions as to the rulings of the court upon evidence:
(4) Whether the court should have excluded the plat introduced by the defendants upon the objection of the plaintiff that it was a plat of the division of some land not sued for in the pending action, and because it contained entries appearing upon the plat showing who owned the adjoining land. My colleagues are of the opinion that this plat was properly admitted, while I think the plat should have been excluded for reasons which T will state hereinafter.
(5) Did the court err in admitting the deed from Ina Adams and Mary E. Green, parties in this cause, in which they quit-claimed to Mrs. B. Harris certain land therein described, over the objection that the deed could not throw any light, upon the issue involved in this case, and that the testimony is irrelevant because the land described is not the land in controversy in the case, and the deed throws no light on the subject-matter of the controversy and might be prejudicial to the plaintiffs’ case? A further objection (after defendants’ counsel had stated that they tendered it to show that movant entered into exclusive possession and had sold off the land described, for the purpose of showing an estoppel, and also to show that it was partitioned between Rountree and plaintiffs, and that they took possession and sold it) was upon the ground that the evidence was irrelevant, and that said deed could not be admitted in evidence for any of the purposes stated by defendants’ counsel.
(6) Whether the court should have excluded, on motion of plaintiffs’ counsel, the deed from Mrs. B. Harris to Ina Adams and Mary E. Green, conveying 200 acres of land, being a part of 300 acres of land of lot 529, described in the deed, over objection that the deed was irrelevant, that Mrs. B. Harris was not a party to the case, and that movants were not claiming under*5 her as to the particular land in controversy; which objections the court overruled.
(7) Whether the court erred in admitting to the jury a deed from Mary E. Green to B. G. Hodges, conveying a one-half interest in 200 acres of land described in the deed, over objection that the same was irrelevant, that it threw no light upon the issues involved in the case, and that it was a deed to land, other than the land in controversy, and threw no light on the subject-matter, and might be prejudicial to plaintiffs’ case; and because it could not be used to show an estoppel against the plaintiffs, nor to show that the land was partitioned between Bountree and the plaintiffs’ predecessors in title; and because B. G. Hodges was not a party to this case, and none of the parties were claiming under or through him; and because the land conveyed was not a part of the land in controversy.
(8) Whether the court erred in admitting a deed from Ina Adams to B. G. Hodges conveying a one-half undivided interest in the same 200 acres of land as described in the preceding paragraph, over the objection that the same was irrelevant and could throw no light upon the issue involved in this case; that it was a deed from the predecessors in title of all the movants in said case, except Mary E. Green, to other parties, and the land described is other than the land in controversy, and throws no light upon the subject-matter and might be prejudicial to plaintiffs; and because it could not be used to show an estoppel against the plaintiffs, the present movants, nor to show that the land was partitioned between Bountree and the plaintiffs, or the plaintiffs’ predecessors in title; and because B. G. Hodges was not a party to this case, and none of the parties were claiming under him or through him; and because the land conveyed was not a part of the land in controversy.
(9) Whether the court erred in admitting a deed made by Mrs. B. Harris to I. W. Hawkins, conveying 100 acres of land west of the land in controversy, over objection that neither party to this deed was a party in the present case, and none of the parties in the present case are claiming under or through them, and because the same is irrelevant and can not illustrate any of the issues of this case, and might be prejudicial to the plaintiffs’ interest.
*6 (10) Whether the court erred in admitting certain records from the ordinary’s office, showing proceedings in setting apart to Mrs. B. Harris a year’s support as the widow of J. M. Harris, over the objection that this evidence was irrelevant and immaterial, and because none of the parties in the case are claiming or were claiming under J. M. Harris.
The third headnote embodies the view of the majority of this court, who find that there is no error in any of the other rulings of the trial judge as to evidence. Speaking for myself alone, I shall discuss the fourth, seventh, eighth, and ninth grounds of the amendment of the motion for a new trial, as to which I differ from my colleagues. The writer is of the opinion that it was error to admit in evidence a plat which contained written information which might be used by a jury in the same manner as sworn testimony in the ease. Memoranda upon this map indicated certain individuals as being owners or as in possession (or. as having been in possession) of certain portions of the land. In my opinion this is but opinionative evidence, so far as shown by the plat itself. Admittedly, as appears from the record, the plat was made prior to the trial, without any order of court; and to permit a jury to consider the statements as to possession, ownership, etc., appearing upon a plat like this one, was, in my opinion, almost equivalent to admitting unsworn testimony. Though unable to find authority ruling upon the exact point, I am constrained to believe that it is error to admit, over timely objection, a plat upon which are entered opinionative memoranda (as to material issuable facts), and then permit the conclusions reached by a plat-maker to be taken to the jury-room and considered by the jury,— perhaps to the exclusion of other testimony which'might be overlooked for lack of memoranda to refresh the jury’s mind. And especially is this erroneous, in my opinion, when the memoranda, such as those indicating ownership of land on the plat in the present case, represent merely a conclusion of law- upon the part of the maker of the plat. So far as comes under my observation during nearly forty-three years at the bar, it has been the uniform practice of the courts in this State, where proper objection is made, to decline to admit in evidence plats or drawings containing information which ought to be supplied by a witness subject to cross-examination, and
We all think the court correctly admitted the deed to which objection was made in the fifth ground of the amendment of the motion for a new trial. It is true that it did not- directly involve or concern the land in controversy in this ease; but inasmuch as there is a recital in the deed that it joins the land of the Rountree estate, and the deed was made by one of the plaintiffs, this recital might or might not be considered by a jury as' a circumstance tending to show a partition of the land acquiesced in by the plaintiffs or their predecessors, if other facts or circumstances are shown leading to the conclusion, and it further appears from the evidence definitely what each of the cotenants received as his share of the land, marked out with such precision that the separate share of each can be definitely located.
Though the deed to which objection was made, as set forth in the sixth ground of the amendment to the motion for a new trial (query 6, supra), does not contain a recital that it joins the Rountree estate, or corners on a fence on the line of the Rountree estate, we think it was admissible by reason of the fact that it appears from the recitals of the deed itself, as well as the recitals in the deed from Mrs. Ina Adams and Mary E. Green to Mrs. B. Harris, that these two deeds were part of one and the same transaction, and concerned undivided interests in the same tract of land, however and wherever it may be located.
The majority of the court find no error in the admission of the deed of which complaint is made in the ninth ground of the motion for a new trial. In my opinion the court should have excluded this deed from Mrs. B. Harris to I. W. Hawkins, upon the ground that neither party to this deed is a party in the present case, and none of the parties in the present case claim through them; and for that reason the contents of the deed were immaterial, and the introduction of this evidence could only tend to confuse the issue.
The court admitted, over objection, Book B " Support of Widows,” p. 40, in the ordinary’s office of Brooks county, showing petition of Mrs. B. Harris to the court of ordinary, and that J. M. Harris died on April 3, 1901, leaving herself his widow, and several minor children, and showing that G. B. Baysor was appointed administrator of J. M. Harris’s estate, and asking that appraisers' be appointed to set' aside to her and her children a year’s support; also showing that appraisers were appointed
We think the court erred in directing a verdict. The plaintiffs base two divisions of the amendment to the motion for a new trial upon this ground; the one alleging error for the reason that the court could not have directed a verdict in favor of the defendants, if at all, for more than a one undivided half interest in the land in question; and in the other assignment of error it is alleged that the court could not have directed a verdict at all. In our view of the matter it is immaterial that the court directed the verdict in favor of the defendants for the whole of the tract of land in question, or whether he directed a verdict for only an undivided one-half interest'; and for that reason we shall consider together the 11th and the 12th grounds of the
Granting the well-settled rule of law that the plaintiff must recover in ejectment upon the strength of his own title, and not upon the weakness of the defendant’s title, up to this point in the evidence, the plaintiffs have established a prima facie case to an undivided one-half interest in the entire 935 acres of land, and, upon the testimony adduced, would have been entitled to a verdict in the present case, finding in their favor at least a one-half interest of the land sued for (it being conceded by all parties to be a part of the original 935 acres), and the burden was cast upon the defendants to show how or when title to Mrs. M. E. Harris’s half interest in the land sued for was vested in them. The evidence introduced by the defendants on this point is not strong enough to demand a finding that the plaintiffs, as heirs at law of the cotenant, M. E. Harris, had parted with their possession or title. The defendants insist that the verdict rendered was demanded, and that no other verdict could have been rendered, because there had been a partition between A. J. Rountree and J. M. Harris, as trustee. Remembering that a verdict can never properly be directed if there is any evidence to authorize a different finding, we will consider the evidence. What is the evidence to support this contention? There is no writing evidencing that fact, no award of arbitrators to that effect, no record of an adjudication in partition proceedings; and the defendants themselves say by their amendment that it was an agreement in parol. There is no testimony that any parol agreement of partitioning was ever had, or,, indeed, that J. M. Harris and A. J. Rountree ever had a conversation on this subject. A circumstance from which an agreement of some kind, either written or parol, may be inferred is that Mr. Rountree had for years cultivated and cut timber on certain portions of the tract of land.
The recitals in two quitclaim deeds made by Mrs. Mary E. Green and Mrs. Ina Adam's (the one herself a party, plaintiff, and the other the mother of the remaining plaintiffs), in which certain lands conveyed by them are referred to as being “bounded by lands of the Bountree estate,” is a circumstance to be considered by the jury; but in view of the fact that it appears from the evidence that a jury might be authorized to find in favor of either of two different partitions, or that none was ever made, it will be for a jury to find what lands are meant by the words “lands of the Bountree estate.” The surveyor testified that the deeds containing the recitals just stated would embrace land not contained in the 300 acres, and that indeed two thirds of the land contained in the boundaries of that deed are drawn from a 150-acre tract which is not claimed by the plaintiffs. There are numerous other facts and circumstances to which I shall not now refer, but which satisfy this court that, there being issues of fact, the court below erred in directing a verdict for the defendants.
Judgment reversed.