30 S.E.2d 183 | Ga. | 1944
1. Where a petition was not challenged in the trial court by demurrer or otherwise, and a verdict was returned for the plaintiff, a complaint by the defendant in a motion for new trial that the verdict is contrary to law and the evidence does not authorize this court to pass upon any question as to the sufficiency of the petition to state a cause of action.
2. In the instant case the direct and circumstantial evidence was sufficient to authorize the verdict for the plaintiff as to count 2, wherein the plaintiff sought the cancellation of a stated deed upon the ground, among others, that it had never been delivered.
3. There was no evidence to support the verdict as to count 3, as originally drawn, wherein the plaintiff sought the cancellation of a second deed upon the grounds, that the defendant falsely represented to the plaintiff that a named bank would not make a loan to a woman in the health that the plaintiff "was then in," and promised that, after he had obtained a loan for her benefit on the basis of this deed, he would reconvey the property to her; and that the deed was void for the further reason that no consideration was paid for the same.
(a) Even if the evidence was sufficient to show that the representation was made as alleged, and that the defendant was a party thereto, there was no evidence of its falsity. Nor was it shown that the deed was without consideration.
(b) Under the theory presented by the petition, proof of the oral promise without more, would not authorize the relief of cancellation as prayed.
4. Nor was a verdict for the plaintiff authorized upon any of her amendments, wherein she alleged that the property in question had been set apart to her as a year's support, and that the deeds to the defendant were not made for the purpose of obtaining such support, since it appears from her own testimony that the deed were not invalid as having been made for any other purpose.
5. The evidence authorized the verdict for the plaintiff on count 1, in which she sought an injunction to restrain the defendant from interfering with her tenants and her possession. Even though the evidence did not authorize a cancellation of the second deed, this deed nevertheless reserved to her a life-estate in the property, entitling her to possession.
6. This court will not review a ruling of the trial court refusing to grant a nonsuit, where, after a verdict for the plaintiff, the defendant moved for a new trial on the grounds that the verdict was contrary to the evidence and without evidence to support it, and excepted to a judgment overruling such motion.
7. In the circumstances shown by the record, there is no merit in any of the objections to a statement made by one of the plaintiff's attorneys, in the presence of the jury, to the effect that he was authorized to say that the holder of the loan deed and note, who was also a party to the case and was represented by such attorney, would relieve the defendant from all personal liability and look only to the property.
8. The verdict for the plaintiff on counts 1 and 2 being authorized by the evidence, and no error as to these counts being shown, and the issues *687 presented by the three counts being separable, the judgment refusing a new trial is affirmed as to counts 1 and 2, but is reversed as to count 3, upon which the verdict was unauthorized.
Count 1 alleged that the petitioner is the owner of a described tract of land in Carroll County, consisting of about 185 acres; that the defendant is continually hounding her tenants to move from said premises, and is constantly endeavoring to rent said property to other people, all without any right; that she depends on renting said property for a living, and if the defendant is permitted to continue to harass her tenants, they will vacate the property, and she will be without an income and will suffer irreparable loss; that she is without an adequate remedy at law, and seeks the aid of a court of equity to prevent the defendant from interfering with her quiet and peaceful possession of said property. She prayed that the defendant be restrained and enjoined: from entering upon said premises; from communicating, either directly or indirectly, with her tenants; from attempting to rent said property to other people; *688 from interfering in any way whatever with her possession of said property; and for process.
Count 2 alleged: That the petitioner is the owner of a described tract of land in Carroll County (the description being the same as in count 1); that on January 2, 1933, she executed a warranty deed to the defendant, said deed having been recorded on March 20, 1936, a copy of which was attached to the petition as an exhibit; that said deed was never delivered to the defendant, but that he obtained possession of it in some way unknown to her and placed it of record more than three years after the date of its execution, and is now claiming title to said property by reason thereof; that there is no consideration for said deed, the same was never delivered, and title never passed to the defendant thereunder; that the deed is void, but constitutes a cloud upon her title to the property, and she is entitled to have the same canceled of record. She prayed that said deed be declared null and void; that the defendant be ordered to surrender up same and cancel it of record; that she have such other and further relief as she might be entitled to in the premises; and for process. According to the copy attached to this count, the deed purported to convey the entire estate in the land therein described, without condition or reservation; recited a consideration of $5; contained an attestation clause reciting delivery; and was executed in the presence of two witnesses, one being James Beall, who attested the same as a commercial notary public.
Count 3 alleged that the petitioner is the owner of a described tract of land (being the same land referred to in the preceding counts); that on July 1, 1933, she executed a warranty deed to the defendant and delivered it to attorney Harvey Beall, a copy of the deed being attached to the petition, showing that it was recorded on the day it was executed; that this deed contained the following clause: "It is agreed and understood that Mrs. Emma Lou Grice is to have a life-estate in the above property as long as she may live;" that it was executed and delivered to said Harvey Beall upon the representation by him and by the defendant that it was necessary for said deed to be executed and placed of record, in order that the Federal Land Bank might grant to the petitioner a loan in the sum of $2000, which she applied for; it being represented *689 to her that said bank would not make a loan to a woman in the state of health she was then in; that she executed said deed upon the representations above set out, and upon the promise of the said Harvey Beall and the defendant that when said loan was obtained from the Federal Land Bank, the defendant would reconvey said property to her; that said deed was void for the reason that no consideration was paid for the same, and for the further reason that the representations as to the Federal Land Bank requiring said conveyance as a condition precedent to making said loan was not true, although she believed the same to be true, and acted upon the same; that at the time of executing said deed, she was in feeble health; and the defendant being her nephew, she had confidence in him and relied implicitly upon his representations thus made; that he now refuses to reconvey said property to her, and unless a court of equity intervenes and declares said deed null and void, the same will constitute a cloud upon her title, and she will be without an adequate remedy to remove the same. She prayed that the deed be declared null and void, and ordered surrendered and cancelled; and for process. This deed, like the previous deed, recited a consideration of $5.
In an amendment to count 1, it was alleged that the property in question had been set apart to the petitioner as a twelve-months support at the November term, 1928, of the court of ordinary of Carroll County, and that the defendant had not furnished the petitioner support, and had not paid her any consideration for the property which was or could be used by her for a support, in that he has not paid any consideration whatever for said property. In an amendment to count 2, it was alleged that the property had been set apart to the petitioner as a year's support; and that the deed to the defendant was not made for the purpose of obtaining support, nor for obtaining funds to be used for support, and was not executed for any consideration whatever, and therefore was void, and she prayed that it be declared void, upon the ground that it was executed without consideration, and was not made for the purpose of obtaining support as contemplated by law. An amendment to count 3 was substantially the same as the amendment to count 2.
The defendant's original answer to count 1 denied the material *690 allegations of the petition, and asserted title in the defendant. In answer to count 2, he denied the allegations as to want of consideration and nondelivery of the deed in question, and further alleged that this deed was made to him because the plaintiff was badly involved and could not pay her debts, and insisted that she make a deed to him and let him assume and pay her debts; that she made the deed to him voluntarily, and he obtained a loan on the property, paid the indebtedness, went into possession, and had title to the property. He also alleged that said deed, that is, the deed of January 2, 1933, "was delivered to him at the time it was executed; that later on the plaintiff executed another deed with some kind of reservation of a life-estate therein; and that that deed was never delivered to him until after the loan was obtained; and that he was only acting upon the advice of counsel representing the Federal Land Bank." In answer to count 3, he denied the material allegations contained in this count, and made affirmative averments as to obtaining the loan, and as to his claim of title and right of possession, subject to the loan of the Federal Land Bank.
In an amendment and cross-action, filed in February, 1942, the defendant alleged that the security deed and notes executed by him to the Federal Land Bank had been transferred to Rufus Pritchett, who was then advertising the property for sale; and also alleged, among other things, that the property was not being advertised for the time required by the security deed; and prayed that, in order to avoid multiplicity of suits, Pritchett be made a party defendant and enjoined from selling the property until further order of court. It appears from the record that on February 28, 1942, Pritchett was temporarily restrained as prayed, and that the restraining order was still of force at the time of the trial now under review.
Only two witnesses testified, the plaintiff and the defendant, the latter having been placed on the witness-stand by the plaintiff for the purpose of cross-examination. The evidence given by these two witnesses is discussed in the opinion, and need not be set forth in the statement of facts. Both deeds were introduced in evidence, and it appeared from the deed of January 2, 1933, that it was first written on a typewriter, and described the land as containing *691 150 acres of lot 61, 35 acres in lot 68, and 1 acre in lot 60, in the 11th district; but that it was later changed in handwriting so as to state that it contained 149.77 acres of lot 61, 35.45 acres in lot 68, and none in lot 60. It also appeared in this part of the deed that the figures 33.68 and 1.77 had been interpolated by hand, but were later stricken. It further appeared that, immediately after the original typewritten description, the following words and figures were inserted in handwriting:
"It is agreed and ______________
1. Counsel for the plaintiff in error, the defendant in the trial court, have cited several decisions to the effect that an absolute deed of conveyance will not be canceled at the instance of the grantor merely because of breach of a promise made by the grantee, in consideration of which the deed was executed, since the remedy in such a case is an action for damages. They say also in effect that there was no evidence of actual fraud, and that for this reason, among others, the verdict was unauthorized. As we view the case, it is not open to a consideration of these questions. Whether actual fraud would be an essential element of the plaintiff's case under the law, the petition did not allege such; nor did the defendant in the trial court, by demurrer or otherwise, invoke any ruling as to whether the petition or any one of its three counts was sufficient to state a cause of action. The jury found for the plaintiff on all counts, and the case is before this court solely upon exceptions to the overruling of the defendant's motion for a new trial as amended, in which the nearest approach to an attack on the petition was a complaint that the verdict was "contrary to law." Under such a complaint, no question is presented as to whether the plaintiff's allegations were sufficient to state a cause of action for any of the relief prayed, and no such question should be determined. As was said by Bleckley, Chief Justice, in Furr v. Eddleman,33.68 149.77 1.77 35.45 ----- ------ 35.45 185.22"
A contrary ruling appears to have been made in Goff v.National Bank of Tifton,
What is here said accords with the rulings in Blount v.Metropolitan Life Insurance Co.,
2. It appears from the entire record that the plaintiff's right to a verdict on count 1 would depend upon whether she proved the allegations of one or both of the other counts. Therefore we shall defer any ruling as to the evidence under the first count until after we have considered it as applied to the other two counts. *693
The second count alleged that the deed of January 2, 1933, purporting to convey the entire estate in described land, was without consideration and never delivered. The evidence showed that if this deed was delivered, it was based at least upon an agreement of the defendant that he would obtain a loan thereon for the benefit of the plaintiff, which, without more, would prevent it from being entirely without consideration. Code, § 20-302. The allegation was not that the consideration had failed, but that none had existed.
This brings us to the question whether there was any evidence to authorize a finding that the deed was never delivered. It appears to have been duly attested by two witnesses, one of whom was an official so authorized by law, and the attesting clause recited delivery. This was sufficient to raise a prima facie presumption that the deed was delivered. Ross v. Campbell,
The deed as introduced in evidence showed that certain mathematical calculations had been written upon its face before it was recorded, and as to this matter the defendant testified that Harvey Beall said, "I have some figures on there and I will just write another by this." Thus it seems that the deed had been treated by Harvey Beall as being without force, and that for this reason, and in view of the "figures on" it, he wrote another deed. While the defendant testified that, "Harvey Beall wrote the deed in his office, she signed it and she passed it back to Harvey and he gave it to me," he did not state when Beall "gave" it to him, and this was evidently not done until some time later, that is, until Harvey Beall had defaced it by writing the figures upon it; for it was at the time they were "fixing to close" the loan several months later that Beall, after asking him if he had a deed, and receiving an affirmative reply, made the statement, "I have some figures on there, and I will just write another by this." It could also have been found that the calculations related to the quantity of land to be conveyed, and that they were made because of a discovery of errors in the description, and for the purpose of having a correct description, in the event a later deed should be executed. It appears that in the original deed a part of the land was first described as being in lot 60, whereas in the second deed no lot by that number was mentioned. The deed also contained an incomplete sentence, to *695
wit: "It is agreed ____". This it seems would also tend to show that the deed was never delivered, especially in view of the fact that the second deed contained a clause at the same point and beginning with the identical language, the full sentence in the last deed being: "It is agreed and understood that Mrs. Emma Lou Grice is to have a life-estate in the above property as long as she may live." Again, there was some evidence that the second deed, which purported to reserve a life-estate in the grantor, may have been required by the lender in order that the grantor and the grantee would both sign the security instrument and the note, and both thus become obligated for the debt. The defendant's testimony was not so certain, clear, and consistent that the jury were bound to accept it as true, but on the contrary it was of such nature that they were authorized to draw inferences therefrom unfavorable to him. Lewis v. Patterson,
We are of the opinion that the direct and circumstantial evidence, as above discussed, was sufficient to show that the first deed, after being signed by the plaintiff, was left either with Judge James Beall or with Harvey Beall, for delivery to the defendant only in the event a loan from the Federal Land Bank should be obtained thereon; that the deed was later found by Harvey Beall to be imperfect, and for this or some other reason the event of obtaining the loan did not at any time happen as applied to that deed; that such deed came into the possession of the defendant in some authorized manner; and that, if there was not a technical escrow, the grantor still did not surrender control of the deed, so as to perfect delivery. We are thus obliged to conclude that the evidence authorized a finding in favor of the plaintiff on the second count, that is, for a cancellation of the deed of January 2, 1933, as prayed in that count.
3. The third count was based upon the theory that the defendant and Harvey Beall falsely represented to the plaintiff that the land bank would not make a loan to a woman in the health that the petitioner "was then in." and on their promise that when the loan was obtained the defendant would reconvey said property to the petitioner, and upon the additional theory that the deed was void for the reason that no consideration was paid for the same. We are speaking now only of the original petition, and not of the amendments. We will refer to the amendments in division 4, infra. *696
What has been said in the preceding division as to want of consideration for the first deed will apply with even greater force as to the second deed, since the loan was actually obtained thereon according to the plaintiff's intention. Clearly, this deed was not wanting in consideration.
It appears from the petition that the plaintiff is not relying upon the claimed promise to reconvey as a contractualobligation, for she did not pray either for specific performance or for general relief. However, as to enforceability of such a promise as a contract, see Shapiro v. Steinberg,
4. There was an amendment to each count of the petition alleging that the property had been set apart to the plaintiff as a year's support from the estate of her deceased husband, and that the deed to the defendant was not made for the purpose of obtaining support, nor for obtaining funds to be used for this purpose; but we shall deal first with the amendment as to count 3. In the *697
absence of proof to the contrary, it will be presumed that the deed was made for a proper and lawful purpose. Ragan v.Shiver,
What has just been said as to the evidence relating to the amendment to count 3 will apply in like manner to the evidence as related to the other amendments.
5. Under the rulings in the three divisions next proceeding, the verdict for the plaintiff as to count 3 was unauthorized. What, then, may be said as to count 1? If the first deed, purporting to convey the entire estate should stand, there might be some question as to whether the second deed to the same grantee would have the effect of reserving a life-estate. Code, § 29-102; Yaughn v. Harper,
6. Where, after the denial of a motion for nonsuit, a verdict for the plaintiff was rendered, this court will not review the ruling as to a nonsuit, where the defendant moved for a new trial on the general grounds that the verdict was contrary to the evidence and without evidence to support it, and excepts to a judgment overruling such motion. Accordingly, no ruling will be made as to the refusal to grant a nonsuit, complained of in the second ground of the amendment to the motion for new trial. This is not to imply *698
that such a question could, as a matter of procedure, be properly raised in a motion for new trial. Don v. Don,
7. We consider next the complaint as to the statement of the plaintiff's attorney as set out in the first ground of the amendment to the motion for a new trial. The facts touching this matter are substantially as follows: The statement of the attorney, amplified on interrogation, was to the effect that he was authorized by Rufus Pritchett, holder of the security deed and note, to state that Pritchett would relieve the defendant from all personal liability and look only to the property, — that Pritchett had stated to the attorney that all he wanted was the land or the money, and that anything the attorney might do would suit him. The statement was objected to by counsel for the defendant upon the following grounds: The contract was under seal, and it would require authority under seal to authorize such a statement in behalf of Pritchett; an attorney has no authority to accept less than the full amount of a debt unless he has authority from his client; there was no consideration for the promise by the attorney; that it did not amount to a release, and judgment would be taken against the defendant on foreclosure; and that the statement was prejudicial to the defendant, and was immaterial and irrelevant.
The court, in the first instance, deferred a ruling upon the objection, and again, on being reminded of the matter, after the evidence had closed, stated that he would rule on it later. Assuming that in these circumstances no further renewal of the objection was necessary, we do not think that this ground of the motion was sufficient to show error. The plaintiff's attorney was speaking in a dual capacity. While his statement appears to have been made primarily in the interest of the plaintiff, Mrs. Grice, he was also attorney of record for Rufus Pritchett, for whom it appears he had filed an answer to the defendant's cross-action. Regardless of consideration, Pritchett himself could have stated in open court that he would relieve the defendant from personal liability and look only to the property, and from the facts stated by the attorney, the latter was expressly authorized to say as much for him. Compare Howell v. Howell,
8. Having held that the verdict for the plaintiff on counts 1 and 2 was authorized, and that no error has been shown as to these counts, we see no reason for reversing the judgment as to them. Therefore the judgment refusing a new trial is affirmed as to counts 1 and 2, but is reversed as to count 3.Jeffries-McElrath Manufacturing Co. v. Huiet,
Judgment affirmed in part, and reversed in part. All theJustices concur, except Grice, Justice, disqualified, and Wyatt,Justice, who dissents from the rulings to the effect that theverdict on count 3 was unauthorized, and from the judgment ofreversal as to that count.
