Baker v. Moore

• Decision Date: 13 March 1936
• Docket Number: 10682.
• Citation: 184 S.E. 729,182 Ga. 131
• Parties: BAKER v. MOORE et al.
• Court: Georgia Supreme Court

184 S.E. 729

182 Ga. 131

BAKER v. MOORE et al.

No. 10682.

Supreme Court of Georgia

March 13, 1936

Syllabus by the Court.

1. For reasons stated in the opinion, the motion to dismiss the writ of error is without merit, and must be denied.

2. Under the facts of this case it was error for the judge, in his charge, to tell the jury that an admission of a fact material to the issue had been made by the losing party, when no such admission had in fact been made. For this reason the court erred in refusing a new trial.

Error from Superior Court, Taliaferro County; C.J. Perryman, Judge.

Action by Victor Baker against Robert Reese and A. D. Moore and others. To review an adverse judgment, the plaintiff brings error.

Reversed.

On May 8, 1934, the heirs at law (all of the grandchildren) of Victoria Baker brought an action of ejectment against Robert Reese for possession of a described tract of land in Taliaferro county. The petitioners claimed title in fee simple, and asked for mesne profits. Attached to the petition was an abstract of title relied on by the plaintiffs, being a recorded deed dated January 4, 1887, from Edward Crooke to Victoria Baker as trustee for her children, conveying 1 1/2 acres of land in the village of Sharon. A. D. Moore received notice of the suit, and joined Reese in answer to the petition. They admitted possession, and averred that Reese claimed no title and was occupying the land as agent of Moore, administrator of Henry Baker, deceased, and that Moore was entitled to possession of the property as administrator. The defendants further averred as follows: Henry Baker died on April 11, 1932, in possession of land, including the property in dispute, described in a plat attached to the answer. Baker was in possession, for more than 45 years, of the entire tract containing 4 1/2 acres inclosed, claimed and adversely held, and Moore is entitled to the entire tract for the purpose of paying the debts of Henry Baker. Victor Baker (one of the plaintiffs) is not entitled to claim any right, title, or interest in the property, for the reason that on April 12, 1932, it was necessary and urgent that a casket and other funeral necessities be provided for Henry Baker, deceased, and Victor Baker approached Moore and represented to him that the land was the property of Henry Baker and that Moore could collect from said property the costs and expenses incident to the funeral of Henry Baker and fraudulently led Moore to believe that he (Victor Baker) did not claim any title or interest in the property consisting entirely of the estate of Henry Baker, and Moore will be able to recover against said estate for the casket and funeral expenses if Victor Baker should prevail in this suit, and any interest, right, or title of Victor Baker is impressed with the claim of Moore, who was ignorant of any interest, right, or title that Victor Baker had in said property, and had no convenient means of acquiring such knowledge; and Victor Baker is estopped from claiming any right, interest, or title against Moore in this suit. North of where an old line wire fence stands is a parcel of land obtained by Henry Baker by purchase, and occupied, inclosed and cultivated and held by him adversely to the world for more than 20 years, to which said plaintiffs have no rightful claim or title, and to which defendant has right and title as administrator; and, unless he is allowed to administer, Moore will suffer loss and damage. The funeral expenses of Henry Baker, with the costs of administration, are in excess of the value of the property belonging to said estate, and for the payment of the debts it is necessary for the entire property to be sold.

After introduction of evidence, the jury found that the plaintiffs had title to the 1 1/2acre tract, but that Moore had the right to subject the undivided one-fourth interest of Victor Baker to the payment of $85 as funeral expenses connected with the death of Henry Baker, and that the title to the other 2 acres was the estate of Henry Baker, deceased. The plaintiffs made a motion for new trial, which was overruled and they excepted. The special grounds of the motion are: (1) The verdict is contrary to law, because in ejectment an account wholly disconnected from the realty involved cannot be injected into the case and a lien set up for said account against such real estate. (2) The court erred in the following charge to the jury: "There is another issue involved in the case. If you should believe, under the evidence in the case, that Mr. A. D. Moore sold his casket upon the representations made to him by Victor Baker, and that they were material representations, and that he acted upon them, and that they were fraudulent, and that he was deceived thereby, then I charge you, if you see proper, that you would be authorized to subject the interest of Victor Baker, which is one-fourth interest admittedly, to the payment of this debt, in both tracts of land. As I understand it, if you find, as already explained to you, that Victor Baker's interest should be subject to the payment of this coffin, then that would apply to both tracts and his one-fourth interest, and you could specify in your verdict that his one-fourth interest in the two tracts, because it is admitted that if he had an interest in both tracts, it should be subject to the payment of this claim." The movants contend that this charge was contrary to law and evidence, as no such admission as stated in the charge had been made.

Motions to dismiss the writ of error were made, one by Reese and the other by Moore. Counsel for Reese insists that he was the original party in the suit, was served with the petition answered, and on the trial of the case prevailed as the defendant; that he is an essential party to the bill of exceptions, for the reason that, if a reversal is had, he will again be subjected to the dangers of a codefendant, and a judgment may result against him for the premises in dispute and for the mesne profits or rental; that he was not served with a copy of the bill of exceptions, nor did he acknowledge service nor did he consent that any one do so for him; that if the contentions of Moore are not upheld, he is unavoidably and necessarily liable for mesne profits and for rental; that he is not named as mover in the motion for new trial, and is ipso facto eliminated as a joint defendant, but a reversal in this case would again make him liable to the dangers of a codefendant. The motion of Moore is based upon the grounds: (1) The suit was against Robert Reese, the joint defendant named in the original petition, and Reese is an essential party to the bill of exceptions, and he was not served with a copy of the same, nor did he acknowledge service or consent that any one else do so for him. (2) That the certificate to the bill of exceptions is undated and was served by a copy of the same being handed to the attorney for said A. D. Moore on January 14, 1935, more than 30 days after the judgment complained of, which was on December 10, 1934. (3) The bill of exceptions recites that it was the case of "Victor Baker et al. v. Robert...