150 Ga. 266 | Ga. | 1920
This case arose upon the issue made by a caveat to an application for partition filed by Mrs. Mary S. Marshall, in which she alleged that she and T. W. Singleton and Philip Singleton, or the grantee of the latter, Mrs. Carrie Singleton, were tenants in common of a certain described tract of land. The applicant and T. W. and Philip Singleton had been tenants in common of a larger tract of land in which was included the small tract of 25 acres in regard to which the controversy arose. The evidence in the case raised a controlling issue, that is, whether, in order to effect a division of a larger tract of land-which had been divided into three tracts of a little over 300 acres each and a fourth tract of 25 acres, the applicant for partition had agreed that if the defendant Philip Singleton would execute a deed conveying his interest in two of the larger tracts in consideration of the other 'two defendants, conveying their joint interest in the third one of the larger tracts, Mrs. Marshall “would give her interest in the 25 acres of land to this defendant.” And it is further averred that Philip Singleton agreed to this proposition, and that the reciprocal deeds were duly executed. None of the three deeds referred to the agreement upon the part of Mrs. Marshall “ to give her interest in the 25-acre tract.” The alleged agreement as to the 25-aere tract rested in parol, but it is averred that Philip Singleton went into possession of that tract under the agreement. Upon the trial of the application and the issue made by the answer thereto, there was evidence tending to show that Mrs. Marshall liad made the agreement alleged, but Mrs. Marshall denied making this agreement, and upon the trial of this issue the jury found in favor of the applicant,' and the losing party made a motion for a new trial. This motion was based upon the usual general grounds that the verdict was contrary to' evidence, etc. It was overruled.
It is apparent that there is some evidence to support the finding of the jury. Mrs. Marshall herself testified in part as follows: “ I didn’t know that I had drawn the home lot until then [the time when the deeds were executed]. Not a thing was said prior to this award and division about this 25 acres of land [the land in controversy] by either Philip [Singleton], Terrell, or myself. It was left out of the division, and instead of it being three parts, that made the fourth part and it was to be divided some time after-wards. Nothing was said to me by Philip or Terrell prior to the
Judgment affirmed on the main bill of exceptions; cross-bill dismissed.