184 Ga. 532 | Ga. | 1937
John Phillips filed his petition against Mrs. H. E. (Minnie) Hightower and Carl Lanier, in which he alleged that his wife died seized and possessed of a certain farm; that he was her sole heir; that he paid all debts owing by his wife; that there was no administration of her estate; that defendant, Mrs. Hightower, claimed that the plaintiff’s wife owed her a debt; that in 1925, at the behest of Mrs. Hightower, an arrangement was entered into whereby the plaintiff turned this farm over to the defendant to work out the claimed debt of his wife; that Mrs. Hightower retained control and management of this farm under this arrangement for about seven years, and until the alleged debt was extinguished from profits realized by her from the operation of the farm; that during this time the plaintiff was employed by defendant as overseer, and received a salary
The jury returned a verdict in favor of the plaintiff, and a ■decree was entered, permanently enjoining the defendants as prayed. The defendants moved for a new trial on the general grounds, and by amendment added three special grounds, reference to which will be made in the following opinion. The judge overruled the motion for a new trial, and defendants excepted.
1. It is contended that the court erred in overruling the motion for a new trial on the general giounds; that the plain
2. The special grounds of the motion for new trial show no error. The court did not err in stating the contentions of the plaintiff, and then instructing the jury that if they believed the same by a preponderance of the evidence they should find for the plaintiff. The claim of the defendant that the evidence of the plaintiff did not sustain his contentions is, as we have pointed out, not well taken. The court did not err in failing to charge the jury as follows: “The plaintiff was bound by the allegation of his petition which would amount to admissions; and the plaintiff having alleged that he turned the land involved in this case over to H. E. Hightower individually or as general agent for Mrs. H. E. Hightower, to be held until the rents therefrom would pay off an indebtedness due by him to H. E. Hightower or Mrs. H. E. Hightower, that he would not be entitled to possession of the land in his own right, unless the jury were satisfied by a preponderance of the evidence that this indebtedness had in fact been paid,” particularly where there was no timely written request therefor,
Nor did the court err in failing to charge, without a timely request, “that the issue between the plaintiff and the defendant was one of tenancy or no tenancy, and that before they would be authorized to find a verdict in favor of the plaintiff they would have to believe by a preponderance of the testimony in the case that the plaintiff was not the tenant of the defendant . . at the time the eviction warrant was sued out and served, the execution of which is sought to be enjoined in this proceeding.” As we have seen, this defendant would not be entitled to sue out and maintain dispossessory proceedings against the plaintiff if he were the owner of the title to the land by purchase, gift, or otherwise; and the plaintiff did not necessarily have to testify expressly that he was not a tenant of Mrs. Hightower, where he testified that he was the owner of the premises and that he had made no deed thereto to this defendant, she having set up and claiming that he had executed such deed to her. The charge of the court sufficiently covered the question that the plaintiff claimed to be the owner and the defendant claimed that plaintiff had conveyed the premises to her, and that the jury would have to so believe from .a preponderance of the evidence. -The court did not err in overruling the motion for new trial.
Judgment affirmed.