Arrington v. Thompson, s. 18974

• Decision Date: 13 July 1955
• Docket Number: 18989,Nos. 18974,s. 18974
• Citation: 211 Ga. 734,88 S.E.2d 402
• Parties: H. H. ARRINGTON v. J. T. THOMPSON et al. J. T. THOMPSON et al. v. H. H. ARRINGTON
• Court: Georgia Supreme Court

Page 402

88 S.E.2d 402

211 Ga. 734

H. H. ARRINGTON v. J. T. THOMPSON et al.

J. T. THOMPSON et al. v. H. H. ARRINGTON

Nos. 18974, 18989.

Supreme Court of Georgia.

July 13, 1955.

Syllabus by the Court.

The evidence was sufficient to support the verdict for the defendants, and, as fully set forth in the opinion, the trial court did not err in denying the plaintiff's amended motion for new trial for any reason assigned.

This court on September 2, 1952, in Thompson v. Arrington, 209 Ga. 343, 72 S.E.2d 293, affirmed the judgment of the trial court decreeing specific performance of an option to convey the fee-simple title to certain lands by J. T. Thompson to H. H. Arrington. On September 20, 1952, before the remittitur of this court was made the judgment of the trial court, H. H. Arrington filed against J. T. Thompson, and his children, Eunice Thompson, Myrtice Thompson, and James Lindsey Thompson, an ancillary equitable petition which as amended alleged among other things: that on September 4, 1952, a deed dated January 22, 1949, from J. T. Thompson to Eunice Thompson, Myrtice Thompson, and James Lindsey Thompson, in consideration of $10 and love and affection for his children, conveying the land in question subject to a life estate in the grantor, was recorded in the county; that said conveyance was made by J. T. Thompson to his children to defeat collection by petitioner of damages; that the deed was not executed in good faith and, if executed prior to September 4, 1952, it was done as a part of a fraudulent conspiracy entered into between J. T. Thompson and his children for the purpose of defrauding petitioner of his right and interest in the said land and to becloud his title; and that the defendant, J. T. Thompson, has been stubbornly litigious. He prayed for cancellation of the deed from J. T. Thompson to his children and a writ of possession against all of the defendants, contending that, when the cloud on his title is removed by cancellation of the deed, he is entitled to a writ of possession under the decree rendered in the original case. Thompson v. Arrington, supra. He further prayed for damages against J. T. Thompson for rent and because of his stubbornly litigious conduct and for injunctive relief.

To the original ancillary petition in the present action J. T. Thompson interposed a demurrer on general and special grounds, and filed an answer denying the allegations of the petition as to his stubbornly litigious conduct and that the petitioner was entitled to rent. The other defendants filed their answer averring that the deed from their father was made and executed in good faith on the date stated therein, properly witnessed and delivered, and had been in their possession until the deed was recorded, and further that the petitioner had actual notice of the interest owned by them in said land at the time the original option was executed. The trial court overruled each of J. T. Thompson's grounds of demurrer, to which ruling he filed exceptions pendente lite.

The jury returned a verdict in favor grounds of demurrer, to which ruling he amended motion for new trial was denied, and he excepted to that judgment.

The defendant, J. T. Thompson filed a cross-bill of exceptions, assigning error on the judgment overruling his grounds of demurrer. Other facts will be stated in the opinion.

Robert B. Williamson, Sylvester, Moore, Gibson, DeLoache & Gardner, Moultrie, for H. H. Arrington.

R. R. Forrester, Tifton, Ford & Houston, Sylvester, R. D. Smith, Tifton, for J. T. Thompson and others.

MOBLEY, Justice.

1. Special grounds 4 and 5 of the amended motion for new trial were disapproved by the trial court, and will not be dealt with. Deal v. Lanier, 208 Ga. 615(1), 68 S.E.2d 566.

Special ground 6 complains that the court erred in admitting over objection an unsigned carbon copy of a purported option made by one of the defendants, J. T. Thompson, to W. C. Smith, reciting among other things that the option was subject to an outstanding interest conveyed to the defendant's three children.

W. C. Smith testified: Prior to December 12, 1950, the date of the option in controversy, the petitioner and three other men came to his office relative to buying timber. Witness stated he would probably be able to sell the timber to them on the land in dispute, when one of the men said they were about to buy that timber or the land, and that they were advised witness' option had run out. Witness told them a turpentine lease was on it, and that the children had an interest in the land. The witness further testified that the paper exhibited to him by the attorney was the option dated November 3d, which he held on this particular tract of land, was for a 30-day period expiring on or about December 2d, and that it contained the stipulation, 'subject to an outstanding interest conveyed to my three children,' and that it was in his handwriting and was the option which was referred to as having run out. Thus the contents of the option material to this case were admitted in evidence without objection.

The improper admission of evidence is not ground for reversal where the same evidence is subsequently admitted without objection. Rogers v. Manning, 200 Ga. 844(1), 38 S.E.2d 724; Sapp v. Callaway, 208 Ga. 805(3), 69 S.E.2d 734; Healan v. Powell, 91 Ga.App. 787(2), 87 S.E.2d 332.

Special ground 7 complains that the court erred in admitting over objection, a letter dated June 5, 1952, written by Eunice Thompson in Cleveland, Ohio, addressed to her brother, James Lindsey Thompson, in Doerun, Georgia, in which she transmitted the purported deed made by her father to the children.

C. E. Parrish, the justice of the peace who witnessed the purported deed of January 22, 1949, testified in part: J. T. Thompson executed the above mentioned deed in the presence of witness and his bailiff. Witness prepared the deed and its execution was at the time it purports to be. F. E. Fender testified: He was a constable in the justice court and witnessed the deed in question. He did not see J. T. Thompson sign it. The justice of the peace called him in to witness the deed. Mr. Thompson was there, and heard the justice of the peace tell witness Mr. Thompson signed it. Eunice Thompson testified. She lived in Cleveland, Ohio. From time to time her father called on the children for money and he brought this deed to her in January, 1949. Witness and her sister, Myrtice, got up $1,000 for him. Witness kept the deed which he gave her. She wrote the letter, which was admitted in evidence over objection, and enclosed the deed to her brother. She did not know she had to record the deed and did not keep it off of the record to help her father defraud anybody. She had never had any knowledge of any trouble between her father and petitioner until the present action was filed.

'Where a deed, regular on its face, is attacked as invalid, the burden of proof rests on the person making such attack to establish the invalidity.' 26 C.J.S., Deeds, § 190, p. 603. 'In a suit to recover land and to cancel a deed as a cloud upon the plaintiff's title, the burden is upon the plaintiff to make out such case as entitles him to the relief sought'. Shelton v. Edenfield, 148 Ga. 128, 96 S.E. 3. While the presumption of law that a deed which contains on its face no indications of falsity was executed on the day it purports to bear date may be controverted by evidence aliunde, the mere suggestion of fraud or falsity does not put on the parties producing it the burden of showing that the deed was actually executed on the day of its purported date.' Nelson v. Brown, 164 Ala. 397(5), 51 So. 360.

Assuming without deciding that the declarations in the letter from Eunice Thompson to her brother, to the effect that the purported deed of January 22, 1949, was executed on that date rather than in 1952, as contended by the petitioner, were self-serving--where, as here, the only evidence in support of the contention of the petitioner was that he first learned of the purported deed after the decision of the Supreme Court was rendered, and that neither J. T. Thompson nor any of his children informed him of the existence of the deed until after it was recorded September 4, 1952, this was not sufficient to show that the deed was fraudulently executed subsequently to the date shown in the deed. Accordingly, there is no merit in this ground, for the reason that a finding was demanded that the deed was executed on the date it purports to have been executed. Delray, Inc., v. Piedmont Investment Co., 194 Ga. 319(5), 21 S.E.2d 420, 142 A.L.R. 1116.

2. Special ground 8 complains of the charge: 'Now this is the petition and you have a batch of it here. I will state here, just in a general way, I am going to give you two batches of papers. One of them you can consider, of course, if you think it is necessary but it is the record in the original case. You have learned, of course, that there was a contract for the sale of certain lands in Worth County and an option by the defendant, J. T. Thompson, to make a deed to the plaintiff. That matter was litigated and went to the Supreme Court and the Supreme Court held the option was a legal and valid contract and should be enforced. You can examine those papers but there is no contest as to the legality of the option, so I don't know that they would be beneficial, but they have been offered in evidence and will go out with you.'

The effect of the above instruction was that the jury must recognize the validity of the option, as the Supreme Court had held that it was a valid and binding obligation, which was obviously the purpose for its introduction in evidence. The charge was not therefore, as contended, an expression or intimation of an opinion as to the weight of such evidence, in violation of the provisions of Code, § 81-1104.

3. Special ground 9 complains of the charge: 'Now, after that, the plaintiff in this case comes into court--and he is...