Opinion
16825.
OCTOBER 12, 1949. REHEARING DENIED NOVEMBER 18, 1949, DECEMBER 1, 1949.
Equitable petition. Before Judge Hooper. Fulton Superior Court. June 23, 1949.
Robert B. Blackburn and S. T. Allen, for plaintiffs.
Thomas E. McLemore, for defendants.
The evidence authorized the verdict for the defendants, and the complaints relative to the admission of evidence and to the charge of the court are without merit.
No. 16825. OCTOBER 12, 1949. REHEARING DENIED NOVEMBER 18, 1949, DECEMBER 1, 1949.
This is the fifth appearance of this case in the Supreme Court. In 1939, Mrs. R. C. Fowler, and four other children of George W. Latham (deceased), filed an equitable petition for the recovery of twelve acres of land, the cancellation of certain deeds and part of a year's support as a cloud on title, and an injunction, against the widow (Mrs. W. T. Latham) and children of the decedent's brother, and the executor of the Lena Tuck estate, who was then foreclosing on the land a security deed executed by the decedent's brother. The plaintiffs claimed superior title by virtue of an unrecorded warranty deed, executed in 1902 to George W. Latham, by this sister (Mrs. Jennie McDonald), conveying the land to him for life and after his death to the plaintiff children. The defendants claimed title under: (a) a duly recorded warranty deed, executed in 1911 to George W. Latham, by this same sister, conveying the twelve acres to him in fee simple; (b) a duly recorded warranty deed, executed by George W. Latham in 1912 conveying the same land to his brother, W. T. Latham; (c) a judgment setting aside a year's support to Mrs. W. T. Latham and her children; and (d) quitclaim deeds executed in 1940 to Mrs. W. T. Latham, by Mrs. Anna Mae Latham Fowler and Thomas E. Latham (children of George W. Latham).
This court held, when the case was before it for the first time, that the petition as against demurrer set forth a cause of action. Latham v. Fowler, 192 Ga. 686 ( 16 S.E.2d 591).
Upon a subsequent trial of the case, the lower court ordered a nonsuit. In October, 1943, all of the plaintiffs, with the exception of one brother, whose alleged interest had been purchased by a sister, renewed their suit for recovery of the land as provided in the Code, § 3-808. The allegations of the petition in the renewed suit were similar in all respects to those set out in the original petition.
At the conclusion of the evidence introduced in the suit as renewed, the jury returned a verdict in favor of the plaintiffs. The defendants excepted to a judgment denying their motion for new trial. This court in reversing that judgment held that, before secondary evidence relating to the existence and contents of said alleged first unrecorded deed would be admissible, such as that a petition had been filed by the alleged life tenant for permission to sell the property for reinvestment, the existence of the first-mentioned deed, carrying a remainder interest in favor of the plaintiffs, must first be established. Latham v. Fowler, 199 Ga. 648 ( 34 S.E.2d 870).
Thereafter, the trial court heard additional evidence and granted a nonsuit, on the theory that the existence of the unrecorded deed had not been established. On exception this court affirmed the judgment of nonsuit as to the executor of the Lena Tuck estate, but reversed the trial court as to the other defendants, thereby leaving only the issue of title to the twelve-acre parcel, subject to the lien of the executor, pending in the court below. Fowler v. Latham, 201 Ga. 68 ( 38 S.E.2d 732). Before the remittitur of this court was made the judgment of the court below, the plaintiffs filed two amendments, by which they sought to litigate further with the executor who was a lienholder. The executor filed objections to the two amendments, which were sustained by the trial court and the amendments disallowed. On exception this court held that the trial court did not err in dismissing the two amendments. Fowler v. Latham, 202 Ga. 271 ( 42 S.E.2d 636).
When the case again came on for trial, the evidence for the plaintiffs was substantially the same as that heretofore introduced on prior trials, much of which is set forth in Fowler v. Latham, 201 Ga. 68 (supra), and need not here be repeated. Suffice it to say that the evidence was sufficient to authorize, but not to require, a verdict for the plaintiffs.
Mrs. W. T. Latham, one of the defendants, testified in part: She did not know anything about the purported deed from Jennie McDonald to George W. Latham for his life, and never heard it discussed until after institution of the present litigation in 1939. Her husband died May 25, 1920, and she was appointed as administratrix of his estate. The twelve-acre parcel was under fence for ten or fifteen years. She never farmed on the twelve-acre parcel, but some Negroes had a garden on two or three acres of it. "The home house, sixty acres, was set aside for a year's support. There wasn't anything about twelve acres." The witness paid the taxes on this property from 1920 to 1940.
Paul Toland, testified for the defendants: In 1909 he went to see George W. Latham about buying the twelve-acre parcel, and he told the witness that he never did get a deed to it.
A. D. Farr testified: In 1910 or 1911 he had several discussions with George W. Latham regarding a deed from Jennie McDonald. George stated that he had forged a deed on his sister. Later he told the witness that Mrs. McDonald had agreed to give him a deed to straighten it out, and the witness replied that he had better date that deed back to the time he forged the deed.
The defendants also introduced in evidence copies of the deeds and the year's-support proceedings by virtue of which they claimed title.
The final trial resulted in a verdict in favor of the defendants. The present exception is to the judgment overruling the plaintiffs' motion for new trial as amended. Other facts will be stated in the opinion.
In brief, the plaintiffs, who are now plaintiffs in error, claim under a prior unrecorded deed to a twelve-acre parcel of land, and the defendants claim under a subsequent recorded deed from the same grantor, and also by virtue of a year's support, setting aside described realty which the defendants claim included the disputed tract.
The amended motion for new trial contains 16 special grounds, and consists of 24 pages. Grounds 1 to 10 inclusive, covering 16 pages, attack the charge of the court. Grounds 11 and 12 are elaborative of the general grounds. Grounds 13 to 16 complain of the admission of evidence. It would serve no useful purpose to repeat here the language of this lengthy instrument.
Counsel for the plaintiffs specifically argue special grounds 1, 2, and 8. However, they insist that each of the grounds in the motion for new trial are, for the reasons assigned, good, and that they should be sustained by this court.
Special grounds 13 and 14 complain that the court erred in admitting in evidence the record of the year's support, and a duly recorded quitclaim deed, executed by Mrs. Anna Mae Latham Fowler (Mrs. R. C. Fowler) to Mrs. Lillian P. Latham (Mrs. W. T. Latham), over the objections: (a) that it could not have been ascertained from the description as used in the year's support that any part of the twelve acres of land in dispute was shown to have been set aside as a year's support; and (b) that there was no testimony to lay a foundation for the introduction of the quitclaim deed, in that it does not affirmatively appear that the land therein referred to is any part of the land in dispute. There is no merit in this contention. An examination of the descriptive terms contained in the judgment setting aside the year's support, the descriptive terms contained in the quitclaim deed, and those contained in the prior unrecorded deed under which the plaintiffs claim title, shows without question that the judgment for a year's support and the quitclaim must necessarily have included the twelve-acre parcel of land. It follows that the trial court did not err in admitting the evidence for any reason assigned.
Special ground 15 complains that A. D. Farr, a witness for the defendants, was allowed to testify over objection that he had several discussions with George W. Latham regarding a deed from Jennie McDonald, and that George stated that he had forged a deed on his sister. Later he told the witness that Mrs. McDonald had agreed to give him a deed to straighten it out, and the witness replied that he had better date that deed back to the time he forged the deed. The witness not being a party to the case, and not having any interest therein, his testimony was admissible under the Code, § 38-309, which declares: "The declarations and entries by a person, since deceased, against his interest, and not made with a view to pending litigation, shall be admissible in evidence in any case."
Special ground 16 complains that the court erred in admitting in evidence, over the objection that it had no probative value and was incompetent and irrelevant, an affidavit signed by Mrs. Annie Mae Latham Fowler (Mrs. R. C. Fowler) in March, 1940, wherein she stated: "That she is the oldest of the children of George W. Latham, now deceased, and that she remembers all the transactions between her father, George W. Latham, and W. T. Latham and is thoroughly and absolutely satisfied that W. T. Latham paid her father for all of the property that her father, George W. Latham, had any interest in, and that the heirs of George W. Latham [are] due nothing from the heirs of W. T. Latham." Mrs. R. C. Fowler, as one of the plaintiffs, testified at length about her recollection of the transactions between her father, George W. Latham, and W. T. Latham. In such circumstances, the court did not err in admitting her affidavit in evidence over the objection urged.
Special ground 1 complains because the court instructed the jury that, where a deed such as is sought to be established by the plaintiffs — that is the alleged deed from Mrs. Jennie McDonald to G. W. Latham, with remainder over to his children — does not appear to have been recorded, the burden of proof, as such, is on the plaintiffs to show that such deed was executed by the alleged grantor and was delivered to the grantee or grantees therein, with the intention to pass title to the premises, and that such deed purports to vest a life estate in G. W. Latham with the remainder over to his children.
After using the language complained of, the court instructed the jury: "If you find in favor of the plaintiffs, that said deed, alleged to be executed in the year 1902 from Jennie McDonald to G. W. Latham, was so executed, it would then follow as a matter of law that the alleged subsequent deed from Mrs. Jennie McDonald to G. W. Latham, alleged to be dated in 1911 and which deed did not convey any remainder interest to the children of G. W. Latham, but which conveyed the property to G. W. Latham in fee simple, would have no effect in law as between Mrs. Jennie McDonald on the one hand and G. W. Latham and his children on the other hand."
The charge complained of was in accord with the principles of law fixed in Fowler v. Latham, 201 Ga. 68 (supra), and did not, as contended, give undue stress to the burden of proof as imposed upon the plaintiffs. Furthermore, the charge, together with its context, fully submitted to the jury the contentions of the plaintiffs and the defendants as disclosed by the pleadings and the evidence, and was not, as contended, misleading in that it was susceptible of being inferred by the jury that, unless the deed referred to was recorded, it would not be sufficient to pass title.
Special ground 2 complains of the charge: "In other words, even though one party may give a deed to another for life and the remainder over to his children, and if they do not go into possession of the property, and if they do not record the deed, then it is possible that same grantor, Mrs. Jennie McDonald in this case, might subsequently make another deed granting the property to the same life tenant, who would be G. W. Latham, in fee simple, and that deed might be recorded and G. W. Latham might then sell that property to another person who may be a bona fide purchaser for value, and such purchaser might acquire good title to such property, for the reason that in purchasing that property he would not have notice either by recorded deed or by possession as required by law, of one who claims under the first deed."
This charge was likewise in accord with the principles of law fixed in Fowler v. Latham, 201 Ga. 68 (supra), and was properly adjusted to the contentions of the plaintiffs and the defendants as disclosed by the pleadings and the evidence.
Special ground 8 complains of the charge: "The person against whom prescriptive title is sought to be enforced is Mrs. R. C. Fowler, a plaintiff in this case, and as to the plaintiffs, that is, the children of G. W. Latham, the prescriptive title which is sought to be enforced in favor of Mrs. Lillian Latham and her children, it would not run against any of the plaintiffs during the period of time that the plaintiffs were minors, that is, it would not run until such plaintiffs become twenty-one years of age."
There was evidence from which the jury could have found that the children of G. W. Latham became 21 years of age during the years 1916 to 1926; also, that the defendants had paid taxes on the property from 1930 to 1940, and that the twelve-acre parcel had been "under fence" for 10 or 15 years.
The instruction complained of stated a correct principle of law, in regard to one of the defendants' contentions, and was in accord with the decision in Latham v. Fowler, 192 Ga. 686, where this court said (on p. 691): "In suits to recover land, there is no statute of limitations in this State, title by prescription having been substituted for such statutes. City of Barnesville v. Stafford, 161 Ga. 588 (3, b), 592 ( 131 S.E. 487), and cit.; Gunter v. Smith, 113 Ga. 18 ( 38 S.E. 374). In so far as the petition sought a recovery of the land, it was not subject to demurrer as showing a prescriptive title in any defendant, for the reason that, while there were averments as to a deed from plaintiffs' father to his brother (husband of the defendant widow and father of the defendant children), executed in 1912, under which all the defendants are alleged to claim, and a year's support set apart in 1926 to the widow and children, which might have afforded good color of title ( Johnson v. Key, 173 Ga. 586, 160 S.E. 794), the petition did not show any sort of actual possession by any defendant either for seven years under such color, or for twenty years without color of title. Code, §§ 85-401 — 85-407."
An examination of the remaining grounds of the motion for new trial shows them to be without merit. Mrs. W. T. Latham testified on the present trial, that "the home house, sixty acres, was set aside for a year's support. There wasn't anything about twelve acres." Counsel for the petitioners insist that the above testimony conclusively shows that a verdict was demanded in favor of the petitioners. As heretofore indicated, an examination of the descriptive terms contained in the judgment setting aside the year's support, and of those contained in the prior unrecorded deed under which the plaintiffs claim title, shows without question that the judgment for a year's support must necessarily have included the twelve-acre parcel. Since the jury returned a verdict in favor of the defendants, the statement, that "there wasn't anything about twelve acres," must have been interpreted by them to have simply meant that the judgment for a year's support did not specifically mention the particular twelve acres.
The evidence as to the principal issues in the case was in sharp conflict. The jury having resolved the issues of fact in favor of the defendants, it follows as a matter of course that there is no merit in the general grounds of the motion for new trial.
Judgment affirmed. All the Justices concur.