164 Ga. 682 | Ga. | 1927
Lead Opinion
The pleadings in this ease are summarized in the report of Ham v. Preston, 152 Ga. 244 (109 S. E. 505), and the substance of the evidence upon a former trial is set forth in the statement of facts in the case of Preston v. Ham, 156 Ga. 223 (119 S. E. 658). The evidence on the last trial was substantially the same, except upon the question of compromise settlement. The jury returned a verdict in favor of the plaintiff, and it is recited in the bill of exceptions that this is “the third concurrent verdict in favor of the plaintiff in the case.” The defendant made a motion for a new trial, which was granted solely upon the assignment of error contained in the first special ground of the motion. To this judgment the plaintiff excepted; and the defendant assigns error upon the judgment refusing a new trial upon the grounds of the motion other than the first.
In the first ground of the amendment to the motion for a new trial exception is taken to the following charge of the court: “Mrs. Preston in her contention seeks to establish that there was a delivery of these deeds, either actual or constructive, and that this delivery of the deeds did not come into her possession until after the death of Mrs. Ham, but that they were intended by Mrs. Ham, the maker of the deeds, to be conveyed to her, and that the delivery of the deeds was not limited by the grantor, Mrs. Ham, after the death of Mrs. Ham, but that she had relinquished the possession or control and dominion over these deeds during her lifetime, and that it was intended by Mrs. Ham that she, Mrs. Preston, should go into the custody and possession of these deeds before the death of Mrs. Ham.” The defendant contends that the charge quoted was erroneous against her on a material point in the case, and prejudicial and harmful, in that it erroneously stated one of the contentions which she made, and failed to state one of the contentions which she made. It is contended also by her counsel that the defendant did not contend that it was essential to a valid delivery of the deeds that it should have been intended
The court actually gave the request last above quoted, in the language requested; and actually gave the request first above, quoted, modified only by inserting, between the words “happened to her” and the words “if she meant,” the words “and that Mrs. Ham renounced dominion over the deeds and did not reserve the. right to recall or otherwise control the deeds.” And the court, did also charge: “It is a legal delivery if it was intended by'tlie^ grantor that the deed should be delivered to the grantee during.
We are of the opinion that the trial court wrongly construed what was said in the second division of the opinion in Preston v. Ham, 156 Ga. 223. The language in the charge, which this court held in that ease was erroneous and “calculated to mislead and confuse the jury and to impress upon their minds the idea that these deeds had to reach the grantee in the lifetime of'the grantor,” was as follows: “that all instructions given at the hospital or at any other time with reference to the delivery of the deeds by Mrs. Ham should be construed by the jury to mean a delivery during her life, and not a delivery after her death.” In this charge the trial court construed certain instructions with reference to the delivery of the deeds; but the language contained in the court’s charge on the last trial which the trial judge himself subsequently held to be erroneous is a mere statement of the contentions of the defendant, and the language itself is quite different. That leads us, however, to consider whether or not the court erred in that portion of the charge complained of, in stating the contention of the defendant. This is the language held to be erroneous, which is to be read in connection with the other portions of the excerpt quoted: “it was intended by Mrs. Ham that she, Mrs. Preston, should go into the custody and possession of these deeds before the death of Mrs. Ham.” We are of the opinion that the court was authorized to charge this as one of the contentions of the defendant. The defendant introduced a witness, Mrs. Lucy -Sansberg, who on direct examination testified as follows: “I am related to Mrs. W. W. Preston. She is my cousin. Mrs. Emma Ham was
This was all the testimony elicited from the witness by the questions of counsel for the defendant. And where counsel puts up a witness for the sole purpose of proving a fact and does by that witness prove that fact, can it be held that the court was in error in charging that the party introducing the witness. contended that the facts stated by the witness were in accordance with the truth of the case, even though counsel might have argued a different state of facts to the jury and might have proffered written requests to charge that were not absolutely in harmony with the facts which they had introduced a witness to establish? Mrs. Sansberg was
The cross-bill of exceptions assigns error upon the refusal of the court to sustain the remaining grounds of the motion for a new trial. In the second ground of the motion the following charge of the court is excepted to: “Any facts that manifest the relinquishment of control of the grantor over the deeds and establishing the intention of the. grantor to constitute the dominion and control of some one for the grantee is sufficient evidence on the part of the grantee to establish delivery 'of the deed, so as to vest title in the grantee.” There is nothing in this portion of the charge that affords ground of exception to the defendant, the plaintiff in error in the cross-bill of exceptions.
The extended discussion of the principle ruled in the third headnote, to be found in Wellborn v. Weaver, supra, renders further discussion here unnecessary.
The rulings made in the fourth, fifth, sixth, and seventh headnotes require no elaboration. The above rulings cover all of the assignments of error insisted upon in the briefs of counsel.
Judgment reversed on the main-bill of exceptions, and affirmed on the cross-bill.
Dissenting Opinion
dissenting. 1. The court charged the jury as follows: “Mrs. Preston in her contention seeks to establish that there was a delivery of these deeds, either actual or constructive, and that this delivery of the deeds did not come into her possession until after the death of Mrs. Ham, but that they were intended by Mrs. Ham, the maker of the deeds, to be conveyed to her, and that the delivery of the deeds was not limited by the grantor, Mrs. Ham, after the death of Mrs. Ham, but that she had relinquished the possession or control and dominion over these deeds during her lifetime, and that it was intended by Mrs. Ham that she, Mrs. Preston, should go into the custody and possession of these deeds before the death of Mrs. Ham.” The defendant excepted to this charge, upon the ground that it erroneously stated one of her contentions, and failed to state one of the contentions which she made. She contends that this misstatement of her contention, when taken in connection with the substantive law given to the jury by the court, was calculated to mislead and confuse the jury and impair
When this case was here before, this court held: “Where after the deposit of these deeds with the cashier of the bank the grantor directed her kinswoman to get them at once and deliver them to the grantee, such direction amounted to a verbal delivery to the grantee, although they may not have reached the hands of the grantee until after the death of the grantor; provided at the time of giving such directions the grantor had strength of mind sufficient to fully and clearly understand the nature of this act.” Preston v. Ham, 156 Ga. 223. The trial judge, in his order granting a new trial, did not misapprehend or misapply the ruling made by this court when the case was here before, which is set out in the second division of the opinion then rendered. The statement of the contention of the defendant, set out in the instruction complained of, clearly tended to confuse and mislead the jury, and to lead them to believe that the plaintiff contended that the intention of the grantor was that this deed should reach the custody and possession of the grantee in the life of the grantor, to make the delivery effectual.
2. The court was duly requested to charge the jury as follows: “I charge you that it does not require a high degree of mental capacity to make a deed of gift, or to deliver a deed of gift, or to direct or request the delivery of a deed of gift. Any one who has strength of mind and reason equal to a full and clear understanding of the nature and consequences of his or her acts in doing so is to be considered sane for that purpose and capable in law of doing so.” The court refused this request. The principle embodied therein .is a correct statement of law, and was accurately adjusted under the evidence to a vital issue in the case. It follows that the failure to give it requires the grant of a new trial, unless it was covered by. the .general charge. The contention is that it was so covered, by reason of the following instruction to the jury: “I charge you that it requires less mental capacity to make a gift than 'to make a sale. , I charge you that it does not re
3. In view of the evidence in this case, the court did not err in granting a new trial, for the two reasons above given. The evi