Bourquin v. Bourquin

• Decision Date: 07 April 1900
• Parties: BOURQUIN v. BOURQUIN (two cases).
• Court: Georgia Supreme Court

35 S.E. 710

110 Ga. 440

BOURQUIN v. BOURQUIN (two cases).

Supreme Court of Georgia

April 7, 1900

Syllabus by the Court.

1. Where a ground of a motion for a new trial, alleging error in admitting evidence, fails to state that the objection set forth in the motion was made at the time the evidence was offered, the omission cannot be cured by stating in a bill of exceptions, sued out after the time for excepting to rulings at the trial had expired, the fact that the objection in question was made at the proper time.

2. Actual and moral fraud on the part of one holding property in trust for another, whereby the title is apparently transferred to the trustee in his individual name and right renders void any deed executed in pursuance of such fraud and the cestui que trust (he being innocent) may, as against the perpetrator of the fraud, or one taking with actual notice thereof, attack such deed without resorting to equitable pleadings to set the same aside.

3. It is not proper for the judge to inform a jury that particular evidence is entitled to great consideration, but he should leave them free to determine for themselves the weight to be given to it.

4. Where an administrator duly exposed for sale land belonging to the estate of his intestate, caused the same to be bid in by a person acting for him, conveyed the land to a named person in trust for a minor son of the administrator, had the deed recorded, charged himself, as administrator, with the proceeds of the sale, accounted therefor to the heirs of the intestate's estate, and for years returned the land for taxation in the name of the minor son, held that, as a result, the title, so far as the father and son were concerned, passed to the latter; and this is true although the administrator's deed was never delivered to the person named therein as trustee, or to the son, but the possession thereof was retained by the administrator.

5. Irrespective of the special questions presented in the motion for a new trial filed by the plaintiff below, the court erred in not setting the verdict aside on the ground that the evidence demanded a finding in the plaintiff's favor as to the tract of land described in the petition, for which there was a finding in favor of the defendant.

6. Where a plaintiff sues for two distinct parcels of realty in the same action, and there is a verdict in his favor as to one, and in favor of the defendant as to the other, a general grant of a new trial at the instance of either party reopens the entire case for investigation.

Error from superior court, Chatham county; R. Falligant, Judge.

Geo. W Owens, for plaintiff in error.

W. C. Hartridge, for defendant in error.

COBB J.

This was an action of ejectment brought by Polignac Bourquin to recover of Gugie Bourquin two separate parcels of real estate; one parcel being located in the city of Savannah, and the other outside of the city, in the county of Chatham. The jury returned a verdict finding the city property for the plaintiff, and the country property for the defendant. Each party filed a motion for a new trial, and, upon the overruling of his motion, sued out a bill of exceptions to this court; each contending that the jury should have found in his favor as to both of the parcels in dispute.

1. The plaintiff's motion for a new trial was overruled June 17, 1899. In this motion he complains of the admission of certain evidence offered by the defendant, alleging that the evidence was irrelevant, but fails to state in the motion that this ground of objection was urged at the trial. This ground of the motion, as has been often ruled by this court, cannot be considered. The plaintiff, however, attempts to cure this omission by assigning error in the bill of exceptions on the admission of the evidence; stating therein that the objection was urged at the trial. The assignment in the bill of exceptions cannot be considered, because the bill of exceptions was tendered and certified on June 20, 1899, while the case was tried at the June term, 1897, of the superior court. The bill of exceptions is in ample time to complain of the overruling of the motion for a new trial, but too late to complain of rulings made at the trial, exceptions to which are not embodied in the motion for a new trial. The question arises, therefore, as to whether an omission fatal to the consideration of a ground in a motion for a new trial can be cured by a proper assignment in the bill of exceptions. We think it cannot. The trial judge could have refused to grant a new trial on the ground of the motion under consideration for either one of two reasons: First, that, treating the assignment as properly made, no error was committed in admitting evidence; and, second, that, conceding error to have been committed, the assignment was improperly made, because the ground of the motion did not state what objection was made to the evidence at the trial. When a motion for a new trial is presented to a trial judge, he can refuse, just as this court refuses, to consider any ground thereof which is improperly framed. If he should overrule a motion for this reason, then it cannot be said that he has ever passed on the question attempted to be made in the motion. This court sits to review rulings of the trial courts, and it will not pass upon questions on which no ruling has ever been made by the trial judge. See, as bearing somewhat on the question under consideration, Clay v. Smith (Ga.) 33 S.E. 963; Newman v. Day (Ga.) 34 S.E. 167.

2. The jury found for the plaintiff the city property. It appears from the evidence that the plaintiff is the natural son of the defendant; that in 1872 the latter bought the property in dispute from certain named persons, and caused a deed thereto to be made to him as trustee for the plaintiff; that in 1891 the property was seized by the city of Savannah, and sold for taxes,--being bought in by Julius Kaufman. The plaintiff became of age in November, 1891. On July 8, 1892, Kaufman conveyed the property to the defendant. If these deeds from the city to Kaufman and from him to the defendant are valid, then the defendant, as trustee, has been devested of the title, and he owns the property in his individual right. If, on the other hand, the deeds referred to are invalid for any reason, then the title is still in the defendant as trustee, and the jury properly found for the plaintiff, as the trust, if one existed, became executed in November, 1891. The plaintiff attacked these deeds as being fraudulent and void. A deed obtained by actual or moral fraud conveys no title, and the true owner, when he is an innocent victim of the fraud, may, as against the perpetrator of the fraud, or one who has notice of the same, either go into equity to have the deed canceled, or sue in ejectment for the property embraced in the deed, and attack the same as a fraudulent conveyance. Under the practice in this state, a plaintiff in ejectment can set up in his petition that a given conveyance was obtained by fraud, and pray for its cancellation, but he need not do even this. If he shows by his evidence that the deed on which the defendant relies was obtained by actual or moral fraud, and shows title in himself, judgment ought to be rendered in his favor. We think the jury were warranted in finding that the deeds from Kaufman to the defendant and the deed from the city marshal to Kaufman were infected with fraud. Notwithstanding the property was worth about $125 a year for rent, the defendant allowed it to be seized and sold by the city for taxes. Kaufman, who was not especially intimate with the defendant, "happened" to be at the court house on the day of sale. He testified that the marshal suggested that he bid in the property for the defendant, while the marshal testified that the suggestion came from Kaufman himself; and he admitted that on a former trial of the case his testimony was, on this point, the same as that of the marshal on this trial. However this may be, he did buy it in, as he said, for the defendant; paying for it the sum of $35. The deed to him was made July 8, 1891. Afterwards he saw the defendant, and told him what he had done, whereupon the defendant cursed him and told him to mind his own business. After that Kaufman thought the property was his, and told the defendant so. Matters went along this way for some time, when, on July 8, 1892, just one year and a day after Kaufman bought the property, he executed a deed to the same to the defendant in his individual right; the consideration being $40.60, notwithstanding the property was worth at least $1,000. Thereafter the defendant returned the property for taxes in his own name, and treated it in every way as his own. While the evidence on the question of fraud was not of such character as to demand a finding in favor of the plaintiff, we think the jury were authorized to find that the transactions which culminated in the deed to the defendant were merely colorable, and entered into for the express purpose of defeating any right which the plaintiff might have to claim the property. The motive for doing this on the part of the defendant was furnished by the fact that he and the plaintiff had not gotten along well together, and that the latter had left his father's house and been absent for several years. The deed from Kaufman was taken on the very day after the time for redeeming the property had expired, and the amount paid him was just about sufficient to cover the sum he paid for the property, and the expenses of making the transfer.

3. The judge was requested to charge the jury that "the record of a deed by the grantor is entitled to great consideration," and, in the absence of evidence to the...