Barnes v. Barnes, 24457
| Decision Date | 12 February 1968 |
| Docket Number | No. 24457,24457 |
| Citation | 224 Ga. 92,160 S.E.2d 391 |
| Parties | Margaret BARNES v. Murray BARNES. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. The evidence was sufficient to carry the issue to the jury and to support the verdict; thus the court did not err in denying the motions for directed verdict, judgment notwithstanding the verdict, and new trial on the general grounds.
2. The charge on the burden of proof and preponderance of evidence was sufficient in the absence of a timely written request.
3. Where there was no objection to the charge at the time it was given, as required by Code Ann. § 70-207, and no request for a more specific charge, the court did not err in failing to charge that certain tax returns 'could be considered to throw light on the claims, or intentions of the parties.'
4. Where the court charged 'the law on ways that the jury could find that the 1958 deed of Murray Barnes (defendant) was sufficient' as to description, and, upon objection that he should also charge the same as to the deed under which the plaintiff claimed, charged that 'anything I have previously charged you in respect to description in deeds applies to all deeds,' this was sufficient in the absence of a request for a more specific charge.
Albert E. Butler, Jesup, for appellant.
J. H. Highsmith, Baxley, for appellee.
The issue in this case is the ownership of a tract of land of 35 acres. The proceeding was instituted by an equitable petition of Margaret Barnes, seeking to enjoin Murray Barnes from trespassing on a portion of her described property, consisting of 242 acres, more or less. The defendant in his answer and cross action denied that he was trespassing on any land of the plaintiff; and asserted that he was the owner of 35 acres of land, described in his answer, under a deed from M. M. Barnes, the father of the parties, dated February 22, 1958, and recorded August 28, 1958, in which the grantor reserved a life estate. He prayed that title to this tract of land be decreed in him. The defendant claims that upon the death of his father on December 7, 1964, the full fee simple title to the 35 acres vested in him. The plaintiff claims title under a deed from her father dated May, 1962, purporting to convey fee simple title to 242 acres of land, more or less, which she asserts includes the 35 acres in dispute. She also claims that a deed from her father to her, dated February 22, 1958, conveying 225 acres, more or less, included the 35 acres involved in this litigation.
At the close of the evidence the plaintiff made a motion for directed verdict, which the court denied. The jury returned a verdict in favor of the defendant, and judgment was entered decreeing title to the tract in him. The plaintiff filed a motion for judgment notwithstanding the verdict, which was denied, and a motion for new trial on the general and other grounds, which was also denied. The appeal is from those judgments.
1. The first enumeration of error is that the court erred in denying the plaintiff's motion for directed verdict, which was on the ground that there was a fatal variance between the description in the deed relied upon by the defendant for title and the description in his cross action, and that there was no evidence to support the verdict.
The defendant's answer and cross action described the land as follows:
The deed dated February 22, 1958, from M. M. Barnes to the defendant, described the land as follows: '* * * all that tract or parcel of land lying and being in the 4th land district of Appling County Ga. containing thirty-five (35) acres more or less of lot number 22 in said dist. bounded as follows: On the north by Dennis Smart, on south by lands of Margrett Barnes, on east by lands of Margrett Barnes on west by other lands of Murray Barnes.'
We are of the opinion that the evidence was sufficient to support a decree of title in the defendant to the property as described in his answer and cross action. The deed was introduced in evidence as proof of the allegation that the defendant had acquired title to the land as described in his cross action, and extrinsic evidence was offered in proof of the additional details of description, such as courses, distances, fences, road, etc., alleged in the cross action.
The description in the deed, giving the number of acres in the tract, in Lot 22 of the 4th Land District, Appling County, Georgia, and bounded on four sides by named adjoining landowners, was a sufficient description. Deaton v. Swanson, 196 Ga. 833, 28 S.E.2d 126. Holder v. Jordan Realty Co., 170 Ga. 764(1-a), 154 S.E. 353.
The defendant put in evidence a plat of the lands of M. M. Barnes which showed the 35-acre tract in...
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