148 Ga. 794 | Ga. | 1919
(After stating the foregoing facts.)
1. The defendants in their motion for a new trial set up the contention that the court was without jurisdiction to try the question as to whether or not the sheriff’s deed to Baiford and Eaiford’s quitclaim deed to E. J. Groover should be canceled. In support of their contention they cite several decisions by' this court, in which it is ruled that both the grantor and the grantee
2. Exception is taken to the following charge of the court: “You are to take into consideration all the facts and circumstances which surrounded J. W. Groover, the deceased. If you find that he didn’t take any steps to create a forfeiture, if there was a wilful refusal to comply with the conditions in this deed, see whether or not that failure to take advantage of it was due to his inability, mentally or physically; if the circumstances surrounding him were such as to keep him from asserting his rights under the deed. You are to look to the evidence to see whether or not he had a desire to do that. If he had no desire to do it, why then the plaintiff -couldn’t recover. If you find from the facts and circumstances in the evidence that he did have a desire to do it, but by reason of his physical or mental condition, or both, he was unable to do it, why then, gentlemen of the jury, she, his administratrix, would not be precluded from bringing suit in this case; and if you find under those circumstances that the support was an inadequate one, and that he didn’t acquiesce in it or waive his right under it, and was prevented from creating the forfeiture or acting upon the clause which would create the forfeiture, why, then, her right would be the same as his right, and she would have the right to have the deed to James J. Groover annuled.” This charge was in substance correct. The deed from the intestate of the plaintiff to J. J. Groover contained the claüse set forth in the statement of
3. Exception is taken to the following charge of the court: “In reference to that question of notice, I charge you that notice need not necessarily be an absolute information upon the part of one to the other, but it might be drawn from all the facts and circumstances surrounding the parties, their ability to know, and their positions that would require them, if they were undertaking to make a purchase, to inquire and look into the facts and circumstances surrounding the case. There is no constructive notice involved in this case. There may be actual notice, but that notice must be derived from the facts and circumstances surrounding the parties, such as would put a prudent man on notice and make him inquire into the condition of affairs.” This charge was given in reference to the notice E. J. Groover must have had of any failure of J. J. Groover to comply with the condition in the deed made to him by J. W. Groover, before the presumption that E. J. Groover was an innocent, bona fide .purchaser would be overcome. If there are any inaccuracies in this charge, they are not of such character as to injure the movants.
4. During the progress of the trial, while M. S. Lewis, a witness for the defendants, was testifying, counsel for the defend
5. One branch of the defense was based upon the contention that J. J. Groover was holding the land in controversy under E. J. Groover, who had purchased from Eaiford after the last-named had bought at a sheriff’s sale and had taken a sheriff’s deed to the land, and that Eaiford Avas an innocent purchaser for value. It is clearly inferable from the evidence that the contention of the plaintiff, relatively to this defense just referred to, was that E. J. Groover was not a bona fide purchaser Avithout notice of the violation of the condition subsequent' in the deed from J. W. Groover to J. J. Groover, and that the transaction between him and J. J. Groover was colorable. During the progress of the trial, while J. J. Groover was testifying as a Avitness, and after he had testified that since the land in dispute had been purchased by E. J. Groover from Eaiford he (J. J. Groover) hacl rented the land to a tenant, the following questions were propounded to said witness by counsel for defendants, and the folloAving answers were made: “Q. ,Who claims this land? A. E. J. Groover. Q. Why is it that you rented any part of the land? A. He [indicating E. J. Groover, who was near the witness stand] told me to.” Upon objection of counsel for the plaintiff this testimony was rejected, the court holding that it was hearsay evidence. We think this ruling was error. The evidence was material; it •tended to negative the theory of the plaintiff, as indicated in the