173 Ga. 178 | Ga. | 1931
G. H. Yancey and others, as heirs at law of J. B. Yancey, brought complaint for recovery of land and for cancellation of certain deeds, against J. C. Yancey, one of the heirs at law of J. R. Yancey, and G. C. Montgomery and R. H. Young, alleging as follows: J. R. Yancey died in Gwinnett County in 1920, leaving a will which was duly probated, devising certain real property to his heirs and designating the tract each was to have. Each of the heirs went into possession of his tract of land. At the time of the death of J. R. Yancey he owed debts amounting approximately to $6,000, and his estate was not in condition to pay this indebtedness in cash. By mutual understanding and agreement all of the heirs at law of deceased procured an order from the court of ordinary for a sale of the property, with the understanding that J. C. Yancey would bid in the property and obtain a loan from the Federal Land Bank of Columbia, in the sum of $6,000, for the purpose of paying off the indebtedness. The sale was had as contemplated. J. C. Yancey was the purchaser. The 'loan was obtained from the bank, and a deed to secure debt was made, conveying the property described. It was understood between the heirs that J. C. Yancey would hold the property for the
The defendants answered, J. O. Yancey averred, that the plaintiffs had failed and neglected to pay their respective shares of the taxes that had accrued against the property, and had failed, neglected, and refused to pay their respective shares of the installments that came due. against the land; that he was personally unable to meet these payments, and, after repeated efforts to get the plaintiffs to make their contributions for these purposes, was forced to sell the land, in order to get the taxes paid and the installments due the ba!nk, which were signed by 3. O. Yancey personally, he being solely liable to the bank for their payments; that he sold the land to the defendants, who assumed the loan in favor of the bank and the payment of all taxes against the property; and they purchased the property in good faith, relying upon the genuineness of the title, and without any knowledge of any claim by the plaintiffs or either of them.
The jury found in favor of the defendants, Montgomery and Young. The plaintiffs filed a motion for new trial, which was overruled, and they excepted.
Ground 4 of the motion for new trial is that the court charged the jury as follows: “And they further, Montgomery & Young, say in their answer that they bought the property in the utmost good faith and without any notice that these children have any rights in this property as against them; . . that in the utmost good faith they bought the property and agreed to assume the Federal Eeserve Bank loan of six thousand dollars and also at the same time paid some back taxes,” etc. Movants contend that said charge was error for the following reasons: (a) •It amounted to an expression of opinion on th.e part of the court to the effect that defendants had used an extraordinary amount of good faith in the purchase of the property, in that the court used th.e word utmost in referring to the good faith of said defendants,
Ground 10 of the motion is that the court charged the jury as follows: “Now, on the subject of notice, whether they did or did not have notice, that is a jury question. Now the law provides, where a party is in possession of land, that is notice. And in this case you must determine from all the facts and circumstances, taking into consideration the relations of the parties to Carl Yancey, and you determine whether or not there was adverse possession, and whether or not these defendants, if they were in possession of the property, whether that possession was adverse as to the rights of Carl Yancey under the administrator’s deed.” Movants contend that this charge was error, for the following reasons: “The evidence disclosed on the trial of said case that certain of movants were in actual possession of their land at the time the same was bought by Montgomery & Young; that Carl Yancey, the person from whom said Montgomery & Young purchased, was not in possession of the same, or any part of it, he residing at the time on another farm some four or five miles away; that Montgomery & Young did not see the lands before they bought, and did not investigate to see who was in possession, or to find out any rights of any one who might be in possession. Nowhere did the court charge the jury that if any of plaintiffs (movants) were in possession it would be the duty of defendants to investigate and see under what right they claimed such possession. The court did charge the jury that it was their duty' to investigate and see if any of these defendants were in possession, and, if so, whether that possession was adverse to the rights of Carl Yancey. This was error, as movants- contend, for the reason that no adverse possession
Movants contend that the court erred by using the words “these defendants,” when he intended to say “these plaintiffs.” The use of this language will not cause a reversal, as it was obviously a slip of the tongue on the part of the court. Besides, the court in his further charge on the point under consideration said: “It is a question for you to determine what was the character of possession, if any, of the plaintiffs, or either of the plaintiffs, at the time; and if it was in such possession, adverse possession, then it was their duty to look into and see the character of the possession; and if it was adverse, that would be notice.” The Civil Code (1910), § 4528, provides that “Possession’ of land is notice of whatever right or title the occupant has.” It is incumbent upon one who purchases or contracts for a lien on land to inquire into the right of any person in possession thereof. Neal v. Jones, 100 Ga. 765 (28 S. E. 427). And the possession must be present, visible, and open. Wilkinson v. Dix, 151 Ga. 605 (107 S. E. 844). On the trial of the case Lovic Yancey testified: “I am one of the children of J. R. Yancey, one of the heirs under his will. I was always ready to pay my part of the interest and taxes, except one time, and paid that time. The reason I refused one time was because J. C. would not give me a bond for title to the tract that I was in possession of. He refused to sign the bond, but I paid my part of the interest and taxes. I was ready and willing to pay my share of interest and taxes in November, 1926, when it came due. I did not refuse to do so. I talked to Carl about making a loan payment, and he said he didn’t have the money to pay his and was not going to borrow it. I offered to loan him the money until next fall, taking his note for it, but he said he wasn’t going to do it. I did not authorize him to sell the land to Montgomery and Young. I did not know it was going to be sold. I was over in the Stary lot one afternoon before it was sold, and Mr. Young and Mr. Montgomery was in a car; I won’t say whether J. C. was in the car or not; they came along and stopped me in the road, and Carl
Ground 11 of the motion is as follows: “Because the court, upon the trial of said case, charged the jury as follows: ‘Whatever equitable rights they have as against Carl Yancey, that is, if they complied with their contract, or offered to comply with it, they could enforce it against Carl Yancey.’ Said charge is error, as movant contends, for the following reasons, to wit: In this part of the charge, as movants contend, the court for the first time charged upon the rights of plaintiffs in the event the jury should
Ground 12 of the motion is as follows: “Because upon the trial of the case the court charged the jury as follows: ‘If you find in favor of the plaintiffs against all of the defendants, the form of your verdict would be, “we, the jury, find in favor of the plaintiffs against the defendants,” naming all of the defendants, “and we further find that the deed made March, 1927, be ordered up to be canceled.”’ Said charge was error, as movant contends, for the following reasons, to wit: Nowhere in said charge did the court instruct the jury that they had a right to return a verdict against either Montgomery or Young without finding a verdict against both of them. This charge in effect told them that they must either find for both of them or against both of them. The court had previously charged them on their right to find for the plaintiffs against Carl Yancey, and the above charge in connection with the charge on their right to find against defendant Carl Yancey could have, and probably did, leave the jury under the impression that a verdict against one or either of the defendants Montgomery & Young could not be returned. This, as movant contends, was error for the reason that the jury could have returned a verdict against either one of the defendants, two of them or all of them.” This contention is without merit.
The other charges' complained of were not erroneous for any reason assigned.
As the case goes back for’ another trial, no opinion is expressed as to the sufficiency of the evidence to authorize the verdict. The court erred in refusing a new trial.
Judgment reversed.