15 S.E.2d 605 | Ga. | 1941
Lead Opinion
1. Where an owner of realty, who allows taxes thereon to become delinquent and the realty to be sold at tax sale, enters into a conspiracy with one not the purchaser at the tax sale, to defeat an outstanding security deed to the realty, and through fraudulent representations made in pursuance of the conspiracy causes the holder of the security deed to fail to redeem the realty from the tax sale within the redemption period, and the other party to the conspiracy has acquired from the purchaser at the tax sale an option to purchase the tax title to the realty, equity will grant relief to the holder of the security deed against the exercise of such option, where the purchaser at the tax sale is willing to accord him the privilege of redemption but for the option contract. "One who is bound to pay the tax on property can not strengthen his title by purchasing at a tax sale; such purchase shall be treated as payment." Code, § 92-8105. So where another than the owner of realty sold for taxes holds an option to acquire from the purchaser at such tax sale the tax title thereto for the benefit of the owner, under circumstances of fraud as stated above, after the legal period for redemption from such tax sale has expired, the holder of an outstanding security deed to such realty, who by grace of the holder of the tax title is accorded the privilege of redeeming the realty from the tax sale, is likewise entitled to relief in a court of equity.
2. The security deed involved was properly admitted over the objection that "it did not appear how it got into the hands of plaintiff, by transfer or otherwise, and because it did not appear what connection it had with the case." when considered with other evidence that showed that plaintiff was the holder of the deed and legal title to the land it conveyed.
3. The objections to the admission in evidence of the assumption and extension agreement between Mrs. Smith and the plaintiff's testatrix. Mrs. Gholstin, were properly overruled.
4. Neither the third not the fourth special ground of the motion for a new trial is complete, in that in neither does it appear what party offered the evidence objected to. Sims v. Sims,
5. The document objected to in the fifth ground of the motion for new trial was properly admitted as a circumstance on the issue of conspiracy.
6. No error was committed by the trial court in overruling the objection to the admission in evidence of an execution for 1929 state and county taxes, which was levied on December 11, 1936, with sale thereunder had in January, 1937, on the ground that it was void because barred by the statute of limitations.
7. The tax execution for 1929 city taxes issued by the City of Atlanta, although shown to have been dormant when levied, was admissible under the pleadings in this case, as a circumstance to show a course of dealings by one of the defendants as the owner of the realty involved, relatively to taxes thereon.
8. The excerpt from the charge on conspiracy, complained of in the eighth ground of the motion for new trial, shows no reversible error.
9. Complaint is made that the following portion of the charge was not authorized by the evidence and was harmful: "If you believe from a preponderance of the evidence, and under the rules I have given you, that Mrs. Smith was the owner of the property, and by some trick she schemed to acquire a tax deed to the property, and became the purchaser, to the hurt and harm of the plaintiff, and that such scheme was carried out through the instrumentality of Miss Horton, the said Miss Edgarda Horton having known that she was the instrument of Miss Horton's mother, the defendant, then and in that event you would be authorized to find for the plaintiff." This charge was adjusted to the evidence, and was not error for any reason assigned.
10. Where the owner of realty bound to pay taxes thereon allows the realty to be sold to a third person at a tax sale, and such owner, through fraud practiced on the holder of an outstanding security deed, later acquires the tax title thereto even after expiration of the period for redemption of the realty from the tax sale, the effect thereof is to place the title conveyed by the tax sale back into such owner, subject to the deed given to secure a debt.
11. The portion of the charge complained of in the eleventh ground of the motion, though slightly inaccurate, shows no reversible error, when considered in the light of the pleadings and the evidence, and in connection with the entire charge.
12. No error is shown in the portion of the charge complained of in the twelfth and thirteenth grounds of the motion, or in the court's failure to charge as complained of in the fourteenth ground.
Mrs. Katherine Gholstin Johnson, as the executrix of the will *340
of Mrs. R. B. Gholstin, brought a suit in equity, naming as defendants Mrs. Corinne S. Smith, her daughter, Miss Edgarda Horton, and Interstate Bond Company. The prayers of the suit were that Miss Horton be enjoined from exercising a certain option contract which she held from Interstate Bond Company to purchase the tax title to certain realty in the City of Atlanta known as 7 Baltimore Block, and for other relief. This is the second appearance of this case in this court. In Horton v. Johnson,
On July 24, 1922, H. Boyd conveyed the realty here involved to Mrs. Katherine B. Warren by deed to secure a debt, in which he expressly covenanted to pay all taxes on the premises so conveyed, as they became due. During the same month the grantee, Mrs. Warren, "sold to Mrs. Mary R. B. Gholstin all her right, title, and interest in and to said loan deed and note." Thereafter Mrs. Corinne S. Smith acquired the title to this realty, subject to said loan deed. She entered into a written agreement with said Mrs. Gholstin on August 11, 1927, to extend the maturity of the debt so secured by said loan deed, and also assumed and accepted the terms, conditions, and stipulations of the said loan deed. The City of Atlanta issued an execution for 1929 city taxes against Mrs. Smith and on said property for $215.57, which was duly transferred to Interstate Bond Company on December 10, 1930, and was levied on the realty above mentioned on January 13, 1937. Sale thereunder was made, and tax deed to said property was duly made on February 2, 1937, to Interstate Bond Company, purchaser at the tax sale. Three separate releases on different dates, each *341 releasing for a consideration other properties, signed by Interstate Bond Company, were attached to this tax execution.
Miss Horton, the daughter of Mrs. Smith, who lived with her mother at all times involved in this suit, acting through her agent, who was the same agent who represented her mother in procuring Interstate Bond Company to have transferred to it a certain tax execution, entered into a written agreement with Interstate Bond Company on April 22, 1935, in which Miss Horton requested this company to have transferred to it "the lien of tax deeds which are now owned by Elyea Inc.," covering the realty here involved. The company for a stated consideration agreed to do so, and further agreed to grant Miss Horton an option to purchase said realty at any time before July 22, 1935, for the sum of $233.81, subject to the right of others to redeem this land. The final date for the exercise of this option by Miss Horton was several times extended for a consideration, the last date being to January 22, 1938. On the same date of this contract, April 22, 1935, Elyea Inc. conveyed by quitclaim deed to Interstate Bond Company the title acquired by it under two separate tax deeds, each dated May 1, 1934, being made by virtue of two separate tax sales under separate tax fi. fas. issued by the City of Atlanta for the years 1931 and 1932 respectively, against Mrs. Smith. These two tax deeds and the quitclaim deed described the realty here involved. At the written request of Mrs. Smith acting through her agent, and for a consideration, Interstate Bond Company took a transfer of the tax execution for the 1934 City of Atlanta taxes against Mrs. Smith on the land involved, in which writing it was stipulated by Mrs. Smith that "all my taxes prior to 1934 have been paid, the legal equitable title of said property is in the name of Corinne S. Smith, the taxes are assessed against Corinne S. Smith." Interstate Bond Company agreed for a consideration not to have a levy and sale under this execution before a certain date, which was thereafter twice extended.
This same land was again sold under execution for state and county taxes against Mrs. Smith for the year 1929, and deed thereunder, dated February 19, 1937, was made to Interstate Bond Company as purchaser. In an action in Fulton superior court by Mrs. Gholstin against II. Boyd and Mrs. Smith, on the note secured by the loan deed above referred to, a judgment in favor of Mrs. Gholstin against Boyd and Mrs. Smith was rendered on December 16, *342 1937, for $2500 principal and $1700 interest, to be made only from the land described in the security deed.
No effort was made by Mrs. Gholstin to redeem said land from the first two tax sales herein mentioned, within the period allowed by law. When such was made (about July, 1937), Interstate Bond Company informed her of the option held by Miss Horton to purchase this land, which would expire January 22, 1938. This company further informed Mrs. Gholstin that it was entirely agreeable to such redemption, subject only to its obligation to Miss Horton by reason of the said option contract, even though the period for such redemption as a matter of right had expired. Miss Horton testified, in substance, as follows: that she and her mother have all the time lived together, and she has for a long time known about the No. 7 Baltimore Block property, because her mother owned it; that she did not in person make any of the negotiations with Interstate Bond Company concerning her option contract to purchase this company's tax title to the property; that they were made through her agent, who advised her he thought she could get a tax deed to the property; that she and her agent did not discuss the pending loan foreclosure against the property together, and she never heard him discuss it with any one else, but he drew defensive pleadings to this foreclosure, in which her mother was interested: that she knew of that litigation, but had not discussed it with her mother; that her agent talked to her about the taxes against the property, and suggested that she enter into the option contract; that she thought she made the first payment under this contract to Interstate Bond Company, but her agent gave her the money and she gave her check for it; that her agent made all other payments, and she gave him her notes after the litigation began; that the money to make the tender was borrowed in her name, and her agent and another indorsed the note; that her agent took up the monthly payments on the loan, and she gave him her note for the full amount of $233.81; that while she makes $250 a month, she has considerable overhead, and is paying off the mortgage on the house in which she and her mother reside and which she herself owns; that she has never repaid her agent except by notes; that her mother had nothing to do with her taking the option contract — she never discussed it with her mother, and took it for her own benefit, and not for her mother; that she never used any of her mother's money to make *343 payments on it, neither did her mother sign the notes for any of this money; that she knew there was litigation about the property, and she did not suppose she would have taken that option if there had been no loan foreclosure.
W. T. Roberts, an officer of Interstate Bond Company, testified, that he did not know Miss Horton, but knew Mrs. Corinne S. Smith and Miss Horton's agent with whom he has had transactions; that the option contract with Miss Horton with reference to the property at No. 7 Baltimore Block was handled by her agent, who paid the charges from time to time and approved the original contract. Henry Graves, another officer of Interstate Bond Company, testified, that the extensions of Miss Horton's option contract were granted from time to time at her agent's request, who was at the same time of his visits to the company's office handling not only the taxes and tax items covered by the option, but other items of taxes on this same property in the name of Mrs. Smith; that he never dealt with or had any acquaintance with Miss Horton in person; that he remembered that Miss Horton's agent in these transactions had many times also attended to Mrs. Smith's tax contracts on this property before the time the option was taken. Thomas Howell Scott testified, in part, as follows: "Back in the early part of 1935 I had something to do with the handling of this 7 Baltimore Block loan and taxes thereon. I discussed it with Mrs. Smith several times. I told her that Mrs. Gholstin's estate would have to foreclose the loan unless she paid the taxes. She told me that she would pay the taxes, or get the taxes paid by some on who would not foreclose. I received the letter dated March 8, 1935, signed by Mrs. Smith, addressed to me. (The letter is as follows: "My dear Mr. Scott: Will you be so kind as to send me by mail the papers and receipts I left with you. Please be certain to enclose the list of taxes delinquent. The fi. fas. N. O. D. for 1930 and 1931 are in no danger, and have been located.") On or about March 8, 1935, she came to see me and asked about the taxes, as to the amount of taxes due on this property, this information being furnished in April, 1935, and I also talked to her many times prior to that and furnished her information about taxes. . . That was April 9, 1935. She brought a quitclaim deed to show me she had satisfied some of the taxes. To my best recollection that quitclaim deed was made to Miss Horton. That quitclaim deed was *344 not made to Interstate Bond Company. She claimed she had paid the taxes, and brought it up there as evidence to show that, and I revised my tax report and returned the quitclaim deed to her. . . I was writing Mrs. Smith on April 9, 1935, that I had been instructed to foreclose, because I was. The matter had been turned over to me prior to that time to handle it."
Miss Horton wrote to Interstate Bond Company, on January 15, 1938, as follows: "I hereby exercise the option which I have until January 22, 1938, under a contract with you dated the 22nd day of April, 1935, and renewed from time to time, to purchase from you for the sum of $233.81 the property described in said option contract. . ." A check dated January 15, 1938, drawn by Miss Horton on the First National Bank of Atlanta, for $233.81 payable to the order of Interstate Bond Company, was tendered as a compliance with the said option contract by Miss Horton. Interstate Bond Company held this check pending negotiations for a satisfactory conveyance, and never deposited it. During such negotiations, and before January 22, 1938, Interstate Bond Company, Miss Horton, and Mrs. Smith were each by order of court enjoined, at the suit of Mrs. Gholstin's executrix, from changing the title to the said land, which was the beginning of the case at bar. On the trial of this suit a verdict in favor of Mrs. Gholstin's executrix was rendered. A motion by defendants for a new trial was overruled, and Miss Horton alone excepted. Thus the case is here again.
It is ably argued by learned counsel for the plaintiff in error that the evidence is insufficient to support the verdict. When this case was formerly here,
"Conspiracy is the combination of two or more persons to do (a) something that is unlawful, oppressive, or immoral; or (b) something that is not unlawful, oppressive, or immoral, by unlawful, oppressive, or immoral means; or (c) something that is unlawful, oppressive, or immoral, by unlawful, oppressive, or immoral means." 1 Eddy on Comb. § 171. The evidence supports the conclusion that the means by which Miss Horton was to acquire the title to the realty here involved was through fraud, and hence unlawful. As was said by the late Chief Justice Russell while a Judge of the Court of Appeals of this State, in Woodruff v.Hughes,
The plaintiff in error further contends that the plaintiff in the court below was estopped to claim that Mrs. Smith's covenants in the writing assuming all the obligations of the original grantor in said security deed created any obligation on her part to pay the taxes against the real estate involved, because the final judgment in the foreclosure proceeding on the security deed is one in rem and not in personam. This contention appeared in a different form when the case was formerly here. Horton v.Johnson, supra. One of the grounds of special demurrer to the petition called for a copy of this judgment of foreclosure to be attached to the petition, showing whether the same was in rem or in personam. This court then held there was no merit in this ground, and that the trial court properly overruled it. But, without regard to any express covenant on her part to pay the taxes on the realty involved, Mrs. Smith was under the legal obligation to pay the same as owner thereof. Manifestly no such judgment could destroy the obligation the law imposed upon Mrs. Smith, as the owner, to pay the taxes assessed against her on this land by the State and its political subdivisions. As was pointed out by this court on the former appearance of this case, it would seem that the remedy of the plaintiff in the court below would not depend alone on the express covenant of the maker of the security deed, or one standing in his stead, to pay the taxes on the land so conveyed as security, but would likewise exist where there is only the legal duty of such person to pay such taxes as owner. It is elementary that the law of the place, of force when *348
and where a contract is entered into, is as definitely a part of the contract as though it were expressly incorporated in or referred to therein. West End Atlanta St. R. Co. v. AtlantaSt. R. Co.,
2. The first special ground of the motion for new trial assigns error on the admission in evidence of the security deed pleaded by the plaintiff, from H. Boyd to Mrs. Warren, conveying the land which is the subject of this litigation, over the objection that "it did not appear how it got into the hands of plaintiff, by transfer or otherwise, and because it did not appear what connection it had with the case." This ground is not meritorious. The pleadings clearly show the connection of this writing with the case. That a written document is not of itself alone sufficient to establish a fact sought to be proved does not render it inadmissible. Sufficiency of proof is one thing; admissibility of the evidence offered as proof is quite another. The plaintiff in the court below introduced in evidence thereafter another writing signed by Mrs. Corinne S. Smith and Mrs. Mary R. B. Gholstin, in which it is stated that Mrs. Katherine Butt Warren "on July ____, 1922, sold to Mrs. R. B. Gholstin all her right, title, and interest in and to the said loan deed and note." It was stipulated in this writing that Mrs. Smith was the then owner of the land subject to said loan deed, and this writing also stated that the said "property which was conveyed to secure the payment of said loan is now owned by Mrs. Corinne S. Smith, who purchased same subject to said loan." Further, the defendant later introduced in evidence a judgment in favor of the plaintiff's testatrix, based on this loan deed and the debt it was given to secure, which binds her to the position that Mrs. Gholstin had the legal right to sue thereon.
3. The grounds of objection by the plaintiff in error to the admission in evidence of the writing denominated an extension agreement between Mrs. Smith and Mrs. Gholstin, dated August 11, 1927, referred to in the second special ground of the motion for new trial, are without merit, and the court properly overruled them. These grounds were that a judgment rendered in another case, wherein Mrs. Gholstin was undertaking to enforce collection of the note secured by the deed involved against Mrs. Smith and H. Boyd, was in rem, to be satisfied only from the land described in said *349 security deed, and therefore that the plaintiff was estopped to claim any right by reason of the agreement objected to. It should be borne in mind that the proceeding here is in its nature ancillary to the proceeding in which the judgment referred to was rendered. The plaintiff executrix of Mrs. Gholstin was not seeking in this case to establish her right to subject the realty involved to the debt. That was done in the case wherein the judgment was rendered. Mrs. Gholstin's executrix was seeking to prevent the defendant from defeating the very rights established by that judgment. This judgment did not affect the statutory liability of Mrs. Smith for taxes properly assessed against her on the land involved during the time she owned it. The judgment was the termination of an action to enforce a private obligation existing independently of taxes. There is nothing in the record now under review to show that the question of the payment of taxes could have been properly adjudicated in that litigation. Further, this document contained an admission by Mrs. Smith, one of the defendants, that the testatrix of the plaintiff owned all right, title, and interest in and to said loan deed and note. The plaintiff in error contends that the judgment in rem on this note, to be made out of the land conveyed by the security deed, is an estoppel by record against the executrix to have admitted in evidence the document objected to. No such estoppel follows from the judgment. The judgment itself binds the plaintiff in error, who introduced it as evidence, to the position that the plaintiff in that judgment was the owner and holder of the security deed in question and the note which it secured, and also of the legal title to the realty conveyed by such deed.
4. The fourth headnote requires no elaboration.
5. A writing was objected to on the grounds that (a) it bears no date and nothing to show when executed, and (b) it "relates to taxes on this property accruing after the execution of the option contract was made by Miss Horton," and is therefore irrelevant and immaterial, and (c) if such evidence relates to transactions had before the option contract was made by Miss Horton, it is also irrelevant and immaterial and does not throw any light on the issues in this case. The document objected to has to do with a tax execution against Mrs. Smith and the property here involved, and Mrs. Smith's connection therewith, as well as that of her agent through whom she was dealing. It is a circumstance to be considered by *350 the jury on the question of conspiracy, especially since it appears that the same person acted as agent for both Mrs. Smith and her daughter, Miss Horton, in many of the transactions relative to the realty involved.
6. The assignment of error in ground 6 of the motion for new trial, on the overruling of objection to the introduction in evidence of a tax deed and the execution under which the deed was made, on the ground that these documents were irrelevant and immaterial, because the deed was executed after the option contract between Miss Horton and Interstate Bond Company, without showing in this ground the date of the option contract, is insufficient. The ground being dependent on a fact not shown in the ground itself, the assignment is not valid. Garrick v.Tidwell,
7. What has just been said, relative to the assignment of error being dependent on another fact not shown in the ground of motion itself, applies with equal force to the ground of objection set forth in ground 7. The evidence admitted here was a tax execution for 1929 City of Atlanta taxes against Mrs. Smith on the property here involved, with entry of levy dated January 13, 1937. The further ground of objection, that the execution was barred by the statute of limitations, is without merit. Although the execution appears to have been dormant when levied, no rights were being asserted under the deed conveying the land sold under this execution, and it was admissible to show one of the transactions in a course of dealings by Mrs. Smith as the person liable to pay the taxes on the land involved, and in permitting the taxes to accumulate and become delinquent over a period of several years, while the loan held by Mrs. Gholstin and her executrix was running thereon.
8. Complaint is made, in ground 8, of an excerpt from the charge. The court charged the jury that if they believed from a *351 preponderance of the evidence "that Miss Edgarda Horton conspired with Mrs. Corinne S. Smith, or any person representing Mrs. Corinne S. Smith, for the purpose of acquiring title to the property at a tax sale, or for the purpose of acquiring title from a person who had in turn acquired it at tax sale, you would be authorized to find for the plaintiff in this case, provided you believe from the preponderance of the evidence and the rules I have given you that said Mrs. Corinne S. Smith was obligated either as owner or under an obligatory contract to pay the taxes on the real estate as set out in the original petition." It is urged that this was error, because "it authorized and instructed the jury to find for the plaintiff if Miss Horton `conspired' with Mrs. Smith, or any person representing Mrs. Smith, for Miss Horton to acquire title to the property, without reference to whether Miss Horton acquired the title to the property as trustee for Mrs. Smith or for the benefit of Mrs. Smith, or acted as agent for Mrs. Smith in acquiring title." As pointed out in the first division of this opinion, this position is not sound. The following language from 12 C. J. 648, states the principle applicable: "The word (`conspire') is in common use and necessarily carries with it the idea of agreement, concurrence, and combination, and hence is not applicable to a single person or thing; and when one person is charged with conspiring with another, there are no words in the English language by which the idea of the action and co-operation of two minds could be more effectively conveyed, since one can not agree or conspire with another who does not agree and conspire with him." A conspiracy to do an act, as is so well stated in the language just quoted, is never the work of one person. And when an act is done as the result of a conspiracy, such act is in law never the act of one person. Another assignment of error on this excerpt is that it is not authorized by the evidence. This is without merit, and the discussion of the general grounds in the first division of this opinion applies to this assignment. The further assignment of error on this portion of the charge, that "if Miss Horton conspired with . . any person representing Mrs. Corinne S. Smith, for the purpose of acquiring title to the property at a tax sale," etc., the jury would be authorized to find for the plaintiff, if Mrs. Smith was obligated to pay the taxes, does not show reversible error. While the language used may be said to be slightly inapt, the idea that *352 the conspiracy must be had with Mrs. Smith acting by herself personally or through an authorized agent is sufficiently conveyed by the language used. Especially is this true when considered in the light of the entire charge. Had more specific instructions been desired, a timely written request should have been presented.
9. Headnote 9 is sufficiently full.
10. The following excerpt from the charge is complained of in ground 10: "I charge you further, that if you believe from a preponderance of the evidence, and under the rules I have given you, that these defendants, or Mrs. Smith, was obligated to pay the taxes, either as owner of the property, or by assumption under the contract dated August 11, 1927, that she, the said Mrs. Smith, could not acquire title to the property to the exclusion of the plaintiff herein, or to the hurt and the harm of the plaintiff herein, by purchasing at tax sale, even though the time of the redemption period may have passed." It is urged that this was an incorrect statement of the law; that as a matter of law even the owner under obligation to pay the taxes could, after the period of redemption has passed, purchase the tax title and acquire good title, even though he did not then have good title to the land so purchased. This is decided adversely to the plaintiff in error in Union Central Life Insurance Co. v. Bankof Tignall,
11. In ground 11 the plaintiff in error complains that the following portion of the charge is error requiring the grant of a new trial: "The principle that one who is bound to pay the taxes on property can not strengthen his title by purchase at tax sale, but such purchase will be treated as payment of the taxes, is not applicable if the purchaser at the tax sale is not the person bound to pay the taxes, is not the owner, not in any way bound for payment, and there is no collusion between the person who is bound to pay and the purchaser; but if the sale was in good faith, and he went at his own expense and purchased the tax deed, with no evidence of fraud or bad faith, and later sold the property, the sale would be good, provided you find that there was no collusion between the two in carrying out this transaction." The following assignments of error on this charge are made: (a) it is not a correct statement of law; (b) it is inapplicable to the facts; (c) it is misleading; (d) it places the burden on the purchaser of the tax title to show there was no collusion between him and the person bound to pay the taxes, and that the sale was made in good faith, and no evidence of fraud or bad faith; and (e) it was a charge in effect that the purchaser of the tax deed does not acquire good title if there was any evidence of fraud or bad faith, notwithstanding such evidence is insufficient to carry conviction of the existence of such fraud or bad faith. Obviously the court was undertaking here to instruct the jury on the law applicable to the contentions of Miss Horton in the trial. The first portion of this excerpt from the charge, standing alone, correctly states the law applicable. But we understand the assignments to be directed to the following portion of this excerpt: "but if the sale was in good faith, and he [purchaser] went at his own expense and purchased the tax deed, with no evidence of fraud or bad faith, and later sold the property, the sale would be good, provided you find that there was no collusion between the two in carrying out this transaction." Construing this portion of the charge in the light of the pleadings and the evidence, it is manifest that it is an instruction to the jury that if the sale of the land for taxes, at which Elyea Inc. purchased the land involved, was in good faith, and Interstate Bond Company went at its own expense and purchased the tax deed made to Elyea Inc., with no evidence of fraud or bad faith, and later sold the property (as for example to Miss Horton), such sale would be good if there *354 was no collusion between the two (Miss Horton and the owner of the land, Mrs. Smith) in carrying out this transaction. Thus construed, as we think it should be, the charge does not contain the vices alleged by the plaintiff in error, unless the contentions that it places on the purchaser of the tax title, the Interstate Bond Company, the burden to show there was no evidence of fraud or bad faith in such purchase by it from Elyea Inc., and also that Miss Horton could not acquire good title in purchasing the tax title from Interstate Bond Company if there was any evidence of collusion between her and her mother, are good. Relatively to these assignments, the court fully charged on the subject of burden of proof, and on proof of fraud. This portion of the court's charge is not inconsistent with the instructions on burden of proof and proof of fraud. It did not withdraw the charge formerly given on these subjects. Construing the excerpt complained of with the entire charge, and in the light of the pleadings and the evidence, it can not be held to be reversible error, though perhaps slightly inaccurate.
12. Error is assigned in grounds 12 and 13 on the following portion of the charge: "This suit is based by the plaintiff against the defendants on conspiracy or collusion; and I charge you that as a rule evidence of fraud may be established by circumstances as well as by positive proof. Being of a peculiarly subtle nature. slight circumstances may be sufficient to establish it, and particularly is this true in transactions between members of the same family, closely related. Thus where two or more persons are charged with conspiracy, or entering into a mutual scheme to defraud, such conspiracy or scheme may be shown by proof of facts evidencing concurrent knowledge and approbation, in the persons conspiring, of each others' acts, there being approbation of the separate acts of such persons or their duly authorized representatives, directed to the same purpose, or in the particular urged." The vice urged against this instruction is that it is an incorrect statement of the law, and not adjusted to the pleadings or evidence. To this contention we are unable to agree. It is almost in the identical language of a part of the second headnote of the opinion in Holbert v.Allred, supra. The charge was not erroneous.
13. Error is assigned on the failure of the court to charge the jury on the contention of Miss Horton that there was no fraud or *355
collusion between her and her mother, Mrs. Smith, by which she was to acquire the tax title to the property here involved from Interstate Bond Company, and that if Miss Horton paid her own money for the option to purchase the tax title to the property and exercised the same by tendering her own money to acquire title in her own name and for her own benefit, and not for the benefit of Mrs. Smith, the jury should find in her favor. The court fully instructed the jury on the question of fraud. If Miss Horton had desired more specific instructions with reference to her contentions, she should have presented a timely request in writing therefor. Ga. Fla. R. Co. v. Tapley,
Judgment affirmed. All the Justices concur.
Concurrence Opinion
As I understand the record in this case, there is neither any direct evidence nor any fact or circumstance which in any wise tends to show any fraudulent conspiracy between the mother and daughter, whereby the property would be bought in by the daughter for the benefit of the mother. On the contrary, all the evidence and every fact and circumstance seems to indicate that the property was to be bought in by the daughter for herself and with her own money or on her own credit. Accordingly, it seems that the theory of the petition, that the property was in fact bought in by the mother through this subterfuge under which title was to be taken in the name of the daughter, is in no wise supported by any proved fact or circumstance. As I interpret the law, in the absence of any principle of estoppel, there would be nothing to prevent the daughter from buying in the property for herself, in her own name and on her own credit, so as to obtain a good title thereto free from any previous existing secondary lien, such as the security deed held by the plaintiff and assumed by the mother. This seems to be supported, not only by the clearly enunciated decisions of this court, but by the overwhelming weight of general authority.Miller v. Jennings,
The only reason which impels me to concur in the judgment of affirmance does not relate to any of the alleged acts of fraud, collusion, and conspiracy, the existence of which I do not think is shown by the record. It does appear, however, that during the time in which the plaintiff lienholder could have protected her lien by discharging the tax indebtedness, the mother went to the plaintiff's agent and attorney, and asserted her intention to discharge these tax claims, and even went so far as to procure this attorney's assistance in gathering the data from the records in order to effectuate such expressed intention. This evidence was uncontradicted, and was admitted without objection. Manifestly, if the mother had done what she thus expressed her intention to do, the plaintiff would have been protected in her lien without any further action on her part, for the reason that her lien would have become the *357
first outstanding claim against the property the moment that the mother discharged the tax indebtedness. It would not seem, although it should be conceded that the mother — as might well have been the fact — fully intended to do as she then and there expressed her intention, that the daughter, without any notice from the mother to the plaintiff as to any change in the mother's intention, would be permitted to avail herself of the expressed intentions made by the mother and of the unreported change in the expressed program, where it further appears that the mother and daughter were acting more or less in concert, and the daughter admittedly acted on the advice of the agent for each of them. While it is true that the principle of estoppel, on which this special concurrence is based, was not pleaded by the plaintiff, the evidence on this subject was not only admitted without objection, but was uncontradicted. As was held by this court inRieves v. Smith,
