Aycock v. Williams

• Decision Date: 17 February 1938
• Docket Number: 11973.
• Citation: 196 S.E. 54,185 Ga. 585
• Parties: AYCOCK v. WILLIAMS et al.
• Court: Georgia Supreme Court

196 S.E. 54

185 Ga. 585

AYCOCK v. WILLIAMS et al.

No. 11973.

Supreme Court of Georgia

February 17, 1938

Rehearing Denied March 17, 1938.

Error from Superior Court, Jenkins County; G. C. Dekle, pro hac vice Judge.

Action by Jonas Williams and others against Leon Aycock to recover a described tract of land and for other relief, wherein defendant filed demurrers. To review a judgment for plaintiffs, defendant brings error.

Reversed.

Syllabus by the Court.

1. A general demurrer to a petition as amended does not raise the question as to whether allowance of an amendment should have been refused because it proposed to add a new and distinct cause of action.

(a) The court did not err, for the reason urged, in overruling the general demurrer.

(b) Under the facts of the case, the overruling of the special demurrer was harmless, if erroneous.

2. The presumption being that the attorneys who instituted the action were authorized to do so by all the plaintiffs, the testimony of one of the plaintiffs that he did not know whether the action was authorized by a named coplaintiff did not show that the latter was improperly joined.

3, 4. Under the undisputed evidence it appeared that the interest of one of the plaintiffs in the land sued for had been acquired by the defendant, and that such plaintiff was therefore not entitled to recover. Accordingly, the judge trying the case by consent without a jury, erred in finding in favor of all of the plaintiffs, and for this reason the judgment is reversed.

Hitch Denmark & Lovett and R. W. McDuffee, all of Savannah, for plaintiff in error.

Fleming & Fleming, of Augusta, and L. P. Strickland, of Millen, for defendants in error.

BELL Justice.

Jonas Williams and others brought an action against Leon Aycock, to recover a described tract of land, and for other relief. The petition alleged substantially the following: The plaintiffs are the heirs of J. R. Williams, deceased, who in 1902, as the owner in fee simple of the land in question, had it set apart as a homestead for the benefit of his wife, Louisa, and named minor children. All of the children are now of age, and Louisa, the last beneficiary, died on January 2, 1936; thus terminating the homestead interest, and placing the title to the land in the plaintiffs as the heirs of J. R. Williams. Leon Aycock is in possession of the land, claiming title through 'some illegal and void conveyances,' based on an order of the judge of the superior court, dated June 5 1919, allowing J. R. Williams and his wife, Louisa, to convey to their son J. C. Williams the homestead interest in consideration of his supporting them for the remainder of their lives. Copies of the application and order and of the deed made in pursuance thereof were attached to the petition. The order was as follows: 'The petition and exhibits in the above-stated matter being presented to me in due and ancient form, and the same conforming to the statutes in such cases made and provided, and believing that in view of the advanced ages of the said J. R. and Louisa Williams, sole and exclusive beneficiaries under the homestead, that the plan adopted for the alienation of the homestead comes within the purview of the law, the said J. R. and Louisa Williams are hereby authorized and empowered to make a deed of conveyance of said described homestead lands and tenements to their son J. C. Williams, who by the record agrees to accept same upon the same terms and uses as originally granted, and for no other purposes whatsoever. It is therefore considered, ordered, and adjudged by the court that the prayer of petitioner be and the same is hereby granted, in terms of the laws in such cases made and provided.'

The material portions of the deed from J. R. Williams and Louisa Williams to J. C. Williams, dated December 1, 1919, were as follows: 'The party of the first part, for and in consideration of the sum of five dollars in hand paid, the receipt whereof if hereby acknowledged, hath granted, sold, and conveyed unto the said party of the second part, his heirs and assigns, [the tract of land in controversy]. This deed of conveyance is intended to convey the within tract of land to the said J. C. Williams for the natural lifetime of the said J. R. and Louisa Williams. The said J. C. Williams to have the undisputed possession of said land during the remainder of the lives of his said father and mother, and, at their death, to be divided between all of the children of the parties of the first part. The said J. C. Williams is to care, clothe, feed, and protect his parents, the said J. R. and Louisa Williams, the remainder of their lives in conformity and as authorized by Judge Henry C. Hammond, judge of Jenkins superior court, in order granted June 5th, 1919. Which said tract or parcel of land the said party of the first part will well and truly warrant and defend from the claim of all persons whatsoever, unto the said party of the second part, his heirs and assigns forever, in fee simple.' This deed was not made in pursuance of an order allowing a sale for the purpose of reinvestment, and a transfer for any other purpose could carry title to nothing more than the homestead interest, which has expired. The defendant has refused the plaintiffs' demand for possession and past-due rent of said property, and the rentals or mesne profits are reasonably worth $10 per month. The prayers were: (1) That the fee-simple title to the property be adjudged in plaintiffs as heirs of the estate of J. R. Williams; (2) that any outstanding conveyances of the property to the defendant, or other parties, be canceled as a cloud on plaintiffs' title; (3) for judgment against defendant for mesne profits; (4) for general relief; and (5) for process.

The defendant demurred to the petition both generally and specially; but before the demurrers were passed on by the court, the plaintiffs amended their petition. The amendment struck the portions of the original petition wherein it was alleged that the deed of December 1, 1919, from J. R. Williams and Louisa Williams to J. C. Williams, was a valid conveyance of nothing more than the homestead interest, and that, this interest having expired, the title to the land was in plaintiffs as the heirs of the estate of J. R. Williams, deceased. In lieu of the stricken allegations, it was alleged in effect that the children of J. R. Williams and Louisa Williams were the grantees of the reversionary interest under the deed of December 1, 1919; and it was prayed that title to the property be adjudged in the plaintiffs as grantees, and heirs of grantees, under this deed, rather than as heirs of the estate of J. R. Williams. The prayer asking for cancellation of deeds was also stricken. It was alleged in the answer of the defendant that the conveyance of December 1, 1919, by J. R. Williams and Louisa Williams to J. C. Williams, 'vested in J. C. Williams only an estate for the lives of the grantors, the reversionary interest remaining in J. R. Williams,' and 'when on February 7, 1922, J. R. Williams and J. C. Williams joined in the execution of a 'warranty deed with power of sale' in favor of C. C. Woods and to secure a loan, the said security deed conveyed the life interest of J. C. Williams and the reversionary interest of J. R. Williams.' It was further alleged that C. C. Woods foreclosed this security deed, and on December 30, 1929, obtained a deed conveying the title to the property in dispute. 'Defendant claims ownership to the property in dispute by virtue of sundry conveyances which trace his title back to C. C. Woods.' The answer further alleged that the plaintiffs had not offered to reimburse the defendant for $300 spent for improvement and preservation of the property. The court overruled the demurrers to the petition as amended, and the defendant excepted pendente lite. The trial of the case on its merits before the judge, by consent without a jury, resulted in a judgment in favor of the plaintiffs. The defendant excepted, assigning error upon this judgment and on the overruling of is demurrers. The assignments of error will be sufficiently indicated in the opinion which follows.

1. It is contended by the plaintiff in error, the defendant in the court below, that the court erred in overruling his general demurrer to the petition as amended. The asserted basis for this contention is that the amendment to the petition alleged a new and distinct cause of action, not that the petition as amended did not allege a cause of action. Under the original petition the plaintiffs took the position that title to the land descended to them as the heirs of J. R. Williams whereas, under the amendment the plaintiffs claimed title, some as grantees, and others as heirs of grantees, of the remainder or reversionary interest under the deed from J. R. Williams and his wife to J. C. Williams. We do not deem it necessary, however, to decide whether the amendment alleged a new and distinct cause of action, contrary to section 81-1303 of the Code. See, in this connection, McCandless v. Inland Acid Co., 115 Ga. 968(2), 975, 42 S.E. 449; Williams v. Rosette, 177 Ga. 528(2), 170 S.E. 373. In order to authorize this court to reverse a judgment allowing an amendment to a pleading, the record must show not only that objection to the allowance of such amendment was made at the time the same was allowed, but also the ground of such objection. McCowan v. Brooks, 113 Ga. 532(4), 536, 39 S.E. 115; White v. Little, 139 Ga. 522(2-a), 77 S.E. 646; Callaway v. Beauchamp, 140 Ga. 207(1), 78 S.E. 846; Tyus v. Duke, 178 Ga. 800(4), 174 S.E. 527. The present record does not show that the defendant objected in the lower court to the allowance of the...