Murphy v. Peabody, 63 Ga. 522

Murphy v. Peabody

63 Ga. 522 | Ga. | 1879

Bleckley, Justice.

1. Whether a misnomer is amendable does not depend upon whether it is slight or gross. No case is too desperate to be healed; all misnomers in civil pleadings are amendable. Code, §3483. Certainly, it is a wide miss to write George Poster when the draftsman means Charles J., but such a blunder is only a misnomer, and the remedy is easy and instantaneous. The rule of amendment is as broad as the doctrine of universal salvation.

2. Both parties claimed under Jefferson, and the question was, to whom had Jefferson conveyed % The deed was -destroyed, and one theory of its contents was that it created 'in Adela Arnold an estate for life, with remainder to Peabody ; and there was a question which Peabody, whether ■father or son. There was a demise from each. The court ■charged “ that if there was a deed, and it gave the lot, after Adela Arnold’s death, to either one of the Peabodys, they might recover.” This was but a particular application of ¡a well-known general rule, namely, that where the declaration in ejectment contains two demises, from different ‘lessors, the plaintiff may recover by showing title in either 'lessor. Whoever understands the first principles of the ■action of ejectment will not need authority for so elementary a rule as the one to which the court adverted.

3. A thing certain in the case was, that Jefferson had received his purchase money and had made a deed. The deed, having been destroyed by fire, could not be produced. Whether it was made to Peabody the father, or to Peabody *525the son, was open to contest. So it was, as to whether the fund which paid for the land belonged to the former or to Adela Arnold, or was some of it his, and some of it hers. It was also in dispute how the deed read; whether it declared a trust, or rested upon the doctrine of resulting trust, nr whether it conveyed a clear estate to the grantee or his usee in fee simple, or whether it cut the estate into one for life in Adela Arnold, with remainder to one of the Peabodys after her death. She, it seems, went into exclusive possession, and so remained while she lived. She mortgaged the premises to secure her own debt, and died, leaving the incumbrance outstanding. The deed from Jefferson, which was the source of her title, if she had any, was never recorded, and no copy of it was preserved. Under these circumstances, if the land was wholly paid for by her, and the real contents of the deed be left by the evidence in doubt, there maybe a fair presumption of either an express trust in fee, or a resulting trust in fee, in her favor; but if it can be collected from the evidence that the instrument created a remainder in behalf of Peabody, father or son, or if the purchase money, or even a considerable part of it, was paid by Peabody, the father, any conjecture of a trust in fee solely for her benefit would be rebutted. There was evidence enough of the contents of the deed, and touching the real ownership of the” purchase money, to enable the jury to find for the plaintiff; and we do not think they were in any way misled by the instructions of the court, or that there was any failure to instruct legally and fully. There is every reasonable probability that Adela Arnold’s true estate in the premises was for and during her life, and that the deed created a remainder, either for Peabody or his son. This son was a minor at the time the deed was executed, but was of age when the case was tried.

4. The remainder, if any, was not lost by failure to record the deed from Jefferson, and by the due and timely recording of the deed from Adela Arnold’s administrator. - The two deeds did not attempt to send off two streams of *526title from the same source. They are not conflicting muniments of title from the same grantor. The older one carries into Adela Arnold such title as she had; and the younger attempts to convey from her estate a title in fee simple and in this it would have succeeded if her estate had been invested with such title. The trouble with the younger deed, on the supposition that there was a remainder, is not that a prior deed had conveyed away Adela Arnold’s fee,, but that she never had the fee. The two deeds do not lie side by side, but end to end, and the whole difficulty is, if Adela Arnold had only a life-estate, that the first pours nothing into the second. The preference which results from mere recording is not given, except where both deedsemanatefrom the same grantor. Code, §2705. Nor are the-facts such as to make the doctrine of voluntary conveyance, with subsequent conveyance to a bona fide purchaser, applicable to the case. Adela Arnold made no voluntary conveyance. If she ever had the fee, it was hers when she mortgaged the premises, and when she died. The requests-to charge the jury, in so far as the matter of them was legal and appropriate, were covered by the general charge and, of course, where they proceeded on a wrong theory of the law in its application to the evidence, they ought to have-, been declined. We think the court committed no error.

5. There was no motion for a new trial, and a direct' assignment of error on the verdict of the jury is not allowable. It seems that the jury at last ran off into a slight misnomer, wilting the name Charles E., instead of Charles J. The name of this young Mr. Peabody has had quite a. struggle to get a correct standing on the record and retain> it. I do not profess to be altogether certain, even now, of the precise name which he bears ; but the land is his.

Cited for the plaintiffs in error: Code, §§2705, 2329,. 2632, 3492; 13 Ga., 1; 33 Ib., 569.

Cited for defendants in error : Code, §3483 ; 7 Ga., 105 ;. 38 Ib., 443; 6 Ib., 111; 9 lb., 28, 29; 27 lb., 101; 32: lb., 208.

Judgment affirmed.