115 Ga. 109 | Ga. | 1902
Hettie Tapley, as next friend of her four minor children, brought an action against L. 3L Tapley to recover a described parcel of land. The petition was amended by striking the name of one of the children, and alleging that the remaining three children claimed title to only fifteen sixteenths of the land described in the original petition. The trial resulted in a verdict in favor of the plaintiffs, and the defendant complains that the court erred in refusing to grant him a new trial. It appears from the evidence that G. W. Tapley, the grandfather of the plaintiffs, conveyed to their father, R. L. Tapley, the premises in dispute, the consideration of the deed being stated to be the love and affection which he bore to the children of R. L. Tapley. The deed contained^ the following clause: “And . . I, the said G. W. Tapley, do give my son, R. L. Tapley, the full right to sell said tract of land for the benefit of his children, together with all and singular the rights, mem-, bers, and appurtenances to the same in any manner belonging.” The defendant claimed under a deed from R. L. Tapley, which conveyed the land in controversy, and which recited that “ The said R. 'L. Tapley sells the said tract of land for the benefit of his children.” The deed from G. W. Tapley to R. L. Tapley was treated in the present case, by counsel on both sides, as a conveyance to the grantee of the land therein described, in trust for his children, with power to sell the same and use the proceeds for their benefit, whenever he deemed best. The theory of the plaintiffs was, that the sale from R. L. Tapley to the defendant, as well as the deed made in pursuance thereof, was void, for the reason that the sale was made by R. L. Tapley for the purpose of using the proceeds thereof for his own benefit; that they were so used; and that the defendant had full knowledge of this purpose and knowingly and intentionally aided R. L. Tapley in the misappropriation of the proceeds.
After a careful examination of the brief of the evidence, we can find nothing therein that would authorize a finding that the defendant knew at the time he purchased that R. L. Tapley intended to use the proceeds of the sale for his own benefit. On the other hand, the evidence, when taken as a whole, rather supports the conclusion that the sale was made in perfect good faith, both as to the trustee and the purchaser. There was evidence from which a jury could
The motion for a new trial contains several assignments of error on the admission of evidence and charges of the court, birt none of the questions thus raised will probably arise on another trial. There was no error in allowing the plaintiffs to amend their abstract of title. See, in this connection, Camp v. Smith, 61 Ga. 449; Hickson v. Bryan, 75 Ga. 392; Bowe v. Gress Lumber Co., 86 Ga. 17. While it was ruled in Carter v. Greer, 72 Ga. 897, that the plaintiff in an action to recover land was confined to the title set forth in his abstract, we know of no rule which prevents a plaintiff from amending his abstract so as to-show that he had title to the premises sued for at the time suit was brought. There was no error in allowing the plaintiffs to strike one of their number from the cause and leave the suit to proceed in the name of the remaining plaintiffs suing for an undivided interest in the premises described in the original petition.
Judgment reversed.