160 Ga. 824 | Ga. | 1925
Mrs. Annie Horne brought her equitable petition in the superior court of Bulloch County against S. W- Lewis and C. M. Barrington of Bulloch County, and Mrs. Charlotte E. Simmons of Effingham County, for injunction and cancellation of certain deeds, and to have the title to the land in controversy decreed to be in plaintiff, and that she be adjudged the owner thereof. The petition of plaintiff in the court below, who is also the plaintiff in error, alleged in substance that J. J. Simmons died testate, and that under item 1 of his will he devised the land described in the petition to his wife, Charlotte E. Simmons, the language of the item of the will being as follows: “I give to my wife, Charlotte E. Simmons, my homestead place at Stillwell, Georgia, with all the lands, houses, outhouses, and appurtenances thereunto pertaining, together with all my household and kitchen furniture and plantation tools, etc. I also give to my wife all my lands described 'in a deed executed by my father, Daniel G. Simmons Sr., dated April 2, 1894, containing five acres more or less, and bounded north by lands of Keiffer, east and south by lands of Gnann, and west by lands of Morgan, excepting three acres of the above tract, that I have since deeded to one Wesley Johnson (colored); reference may be had to record on file in clerk’s office at • Springfield, Georgia.” Under item two (2) of said will petitioner was bequeathed the sum of $50 in cash, said item being as follows: “Through the love and affection I have for my sister, Mrs. Annie Horne, I give $50 in money.” The 4th item of said will reads as follows: “After all my honest debts and funeral expenses are paid, the residue of my estate, including all my money, notes, bonds, and securities of all kinds, I give to my wife.” The will was probated in solemn form; and through plaintiff’s igno
There are but two special grounds of the motion for new trial. The first is as follows: “Because-the court charged the jury as follows: ‘There is but one question for you to pass on in this case, and that is whether Mrs. Horne, at the time she took under her brother’s will, knew of the existence of the deed; if she did,. why she would be estopped; she could not now come in and claim under the deed, and your verdict would be one in favor of the deed.’ The court, after charging as above stated, nowhere in his charge did he instruct the jury whether or not the notice that plaintiff must have had of the existence of the deed, under which she claims, must have been actual notice. Neither did the court define to the jury what constituted actual notice. Movant contends that the court’s failure to so charge was error: (a) because there was no evidence that the plaintiff had actual notice or knowledge of the existence of the deed in question at the time she took under the will of her brother; (b) because the case as made by the petition and answer, the notice that would have estopped the plaintiff and defeated her recovery would have had to have been actual notice, and the jury should have had actual notice [defined] to them by the court.” In addition to the above excerpt the court instructed the jury: “If she, the plaintiff, did not know of the existence of the deed from Daniel G-. Simmons Sr. to J. J. Simmons, the fact that she may have taken under the will would not amount to an election to forego her rights under the deed, and estop her from claiming adversely to the will. You look to the testimony in this case and determine what the truth of the case is. If you find from the evidence that Mrs. Horne knew of the existence of this deed, and took under the will with that knowb edge, or knowledge of the deed or the existence of it, why she would be estopped and she could not recover, and your verdict would be one for the defendant. On the other hand, if she did not
We are also of the opinion that the judge should have instructed the jury as to whether the plaintiff took something substantial under the will, in order to estop her from claiming under the deed. If the plaintiff was entitled to 153 or 143 acres of land under the deed at the time she took the $50 under the will of her brother, the question should have been submitted to the jury as to whether she had actual knowledge of her rights under the deed, and whether, in accepting the $50, it was a substantial benefit
The second ground of the motion for new trial complains that the court failed to instruct the jury that the burden of proving notice to the plaintiff was upon the defendant. It is insisted that the failure to so charge was error, because the defendant in his answer alleged and contended that plaintiff had notice and knowledge of the existence of the deed under which she claimed When she took under the will, and that the burden was upon the defendant to prove actual notice to her, and therefore that the court’s failure to so charge was error. It will be observed in this connection that the plaintiff amended her original petition and specifically alleged “that your petitioner, through ignorance and without any knowledge of the condition and reversionary interest in the lands described in the first item of said will above mentioned, participated in the probate of said will and accepted the bequest of $50 in her favor, and that she is advised and believes that the testator, James J. Simmons, was laboring under the impression that he held the fee-simple title to said land.” The burden was upon the plaintiff of proving the material allegations of her petition as amended, and the lack of knowledge on her part as alleged in her petition was a most material one. She testified: “I had no knowledge of any deed from D. G. Simmons Sr. to J. J. or James J. Simmons, in which he conveyed the land in question, until last July or August a year ago, or that I had any interest in this property.” It is true that the defendants’ answer averred that by reason of plaintiff’s conduct in permitting the land in question to be conveyed to Charlotte E. Simmons by the will of her husband, J. J. Simmons, without protest, and after full .knowledge of all the facts, circumstances, and contents of the will, and by permitting the nominated executor to place Mrs. Charlotte E. Simmons in possession thereof, and by plaintiff’s acceptance of the legacy given her in the will, and by her laches and failure to make any claim of title or interest in the land from the 'time of the death of J. J. Simmons up to the filing of this suit, the plaintiff is in morals and good conscience and law estopped from now claiming the land independently of any title other than the will of J. J. Simmons, and is in law bound by the terms of the will, the probate thereof, and all subsequent conveyances. But the defend
The plaintiff on the trial of the case offered evidence to sustain the allegations of her petition as amended. She testified that she had no knowledge of any deed from Daniel Gf. Simmons Sr., to J. J. or James J. Simmons, in which he conveyed the land in question, until some time before the suit was brought. She thus carried the burden imposed upon her by law of proving the allegations of her petition. The defendants offered no evidence; and having held that mere record notice of the deed from her father to her brother was not sufficient to estop her as set out in the foregoing division, we are of the opinion that the evidence did not authorize a verdict for the defendants. When the other defendants bought the land in controversy from Mrs. J. J. Simmons, they took with record notice of whatever rights the plaintiff had to the land.
Judgment reversed.