Daniel v. Frost

• Decision Date: 28 February 1879
• Citation: 62 Ga. 697
• Parties: Daniel et al., executors. v. Frost.
• Court: Georgia Supreme Court

62 Ga. 697

Daniel et al., executors. v. Frost.

Supreme Court of the State of Georgia

(February Term, 1879.)

Gift, Wills. Debtor and creditor. Executors and administrators. Claim. Pleadings. Evidence. New trial. Charge of Court. Practice in the Superior Court. Jury. Sheriff. Verdict. Newly discovered evidence. Before Judge Buchanan, Heard Superior Court. September Term, 1878.

On January 6, 1877, an attachment in favor of Frost against Jones and wife, was levied upon lot 285 in the 12th district of Heard county. Daniel as executor of John Daniel, in behalf of himself and his co-executor, interposed a claim. At the March term, 1878, the plaintiff tendered an issue that the property levied on was subject. He also pleaded specially the following facts:

On August 18, 1868, testator made his will, by which the lot levied on was bequeathed to defendant Jones. Testator died on January 5th, l875, and his will was admitted to probate at the following February term of the court of ordinary. Claimants, who are the executors, have capriciously withheld their assent to the devise aforesaid, although all debts of a higher dignity had been settled and the other legacies turned over before the levy. The executors have conspired with each other, and with the defendant Jones, to defeat said devise in order that it may not be made subject to the debts of the devisee. Wherefore plaintiff prays that said executors may be decreed to assent to said legacy, they having been qualified for more than two years before the levy; and that the property levied on be decreed to be subject to his debt.

The claimants joined in the issues thus set forth.

The evidence presented the following facts:

*The defendant Jones married the daughter of testator about the year 1854 or 1855, and was then placed, with his wife, in possession of the lot of land in controversy. The testator allowed him and his wife all the rights and privileges of owners, but he retained the title in himself. He pursuedthis practice with each of his children. Plaintiff\'s debt was contracted when this was the condition of affairs, on December 17, 1873. In November, 1874, testator resumed possession, and shortly thereafter defendant and wife moved to Texas, where they have since resided. Testator often expressed it to be his intention to give this lot to Mrs. Jones free from the liabilities, etc., of her husband, and it was supposed by some if not all parties for a long time after his death that this had been done. But Mrs. Jones having returned from Texas for the purpose of selling the land, a gentleman who was contemplating purchasing examined the will, when it was discovered that the devise was absolutely to her husband. Soon after this discovery this attachment was levied. The will was executed on August 18, 1868, and admitted to probate on February 1, 1875. The testator died on January 5th of the last named year.

On February 23, 1877, the defendant Jones, having, as he testifies, come to a knowledge of the terms of the will not until within that same month, executed an instrument under seal, in substance, as follows: Be it known that I, said Wm. J. Jones, having never assented to, accepted or ratified the bequest in item 6 of the will of John Daniel, and having never since his death exercised any control or authority over the lot therein devised, and it being my firm intention never to accept said devise, knowing that said lot was not intended by said testator for me, but that my name was by mistake or inadvertence inserted in said item, contrary to the known intentions of testator as expressed before and after the making of said will, I do, by these presents, for myself and heirs, absolutely renounce and disclaim any and all right, title or interest in said lot, and do hereby absolutely refuse to accept and ratify such bequest.

*No reason was shown by the claimants why assent to devise was withheld. The estate was perfectly solvent.

The jury found the land subject. The claimants moved for a new trial upon the following, amongst other grounds:

1. Because the court charged the jury, that if they believed from the evidence that W. J. Tones took possession of the land in dispute in his own right, and held it adversely for the space of twenty years; if his possession was public, continuous, exclusive, uninterrupted and peaceable, and accompanied with a claim of right, during the space of twenty years, they should find the property subject. In this connection the court also charged sec. 2680 of the Code, as to what constitutes actual possession.

2. Because after the court had fully charged the jury, on the request of counsel for plaintiff, it called them back and said: "Brother Cox (counsel for plaintiff) is afraid you misunderstood the latter part of the charge. If you believe the title to the land was in W. J. Jones at the time of the levy of the attachment, you should find the property subject. If you believe the title to the land was not in W. J. Jones at the time of thelevy of the attachment, you should find the property not sub ject."

3. Because the court refused to direct the jury, after the verdict was read, to state therein on what issue they found the property subject, plaintiff having claimed to have shown title in the defendant as follows: (l). By the will of John Daniel. (2). By adverse possession for twenty years. (3). By parol gift and valuable improvements. (4). By seven years exclusive possession of a child without payment of rent.

4. Because the court permitted the plaintiff, over the objections of claimants' counsel, to introduce evidence of title in W. J. Jones by prescription, as stated in the preceding ground, without first pleading the same in his issue.

5. Because the sheriff, who is the plaintiff in a similar case against the same land, conversed with the jury after they retired to make up their verdict, he having, also, as sheriff, selected three persons to fill up the panel of traverse *jurors drawn by the court, one of them being on the jury which tried the case, and having also participated with the plaintiff and his counsel in selecting the jury. 6. Because the court excluded the testimony of Glover to the effect "that it was his understanding all the time that the land belonged to old man Daniel, and he put W. J. Jones on it to make a living, " the witness stating that he did not know from whom he derived such understanding.

7. Because one of the jurors being stricken for cause, and plaintiff insisting on a full panel, the said sheriff, by direction of the court, summoned a juror to take his place, who was placed on the panel from which the jury trying the case was stricken, claimants' counsel not knowing at the time that said sheriff would participate with plaintiff in striking the jury, or that he had made an agreement with plaintiff that he would use all his influence to assist him in gaining the case.

8. Because of the newly discovered evidence of Littleton Paschal.

The affidavits submitted in support of the 5th and 7th grounds showed that the talesmen were selected by the sheriff in the ordinary discharge of his duty, without reference to any case; that he did not assist in striking the jury, and that there was no agreement between the sheriff and the plaintiff as to the former's assisting him to a successful issue of the trial. That the only conversation between the sheriff and the jury resulted thus: The sheriff had not been to his home during the week. One of the jurors in going to and from home each night and morning, passed his house. This juror, in the presence of the others and the bailiff, as they were going from the court-house for a walk, called out to him publicly that his son Dick was sick. The sheriff inquired how he was, when the juror responded that be was "better this morning."

The affidavit of Paschal in support of the last ground, was to the same import as all the evidence of the claimants, *showing that Jones, whilst in possession of the land in controversy, did not regard it as his own.

The motion was overruled, and claimants excepted,

L. R. Ray; W. H. Daniel; B. H. Bigham; L. H. Featherston, for plaintiffs in error, argued as follows:

Disclaimer defeated devise, Bouv. L. Dic, "Bequest;" Code, sees. 2657, 2658; Cruise's Dig., vol. 4, title 32, chap. 26, sec. 1; Ib., p. 337, sec. 5, 345, sec. 1; 3 Barn. & Ald., 31; 6 Cow., 617; 20 John., 184; 12 Ib., 420; 2lGa., 257; I7Ib., 267; Hill on Trust., 224; Code, sees. 3162, 3164, 2465; 20Ga., 480; 5 Ib., 341; 1 Ib., 501; 55 Ib., 359; "8 Ib., 596; 51 Ib., 147; 14 Ib., 362. Pleadings requisite in claim cases, 54 Ga,, 620, 624; 57 Ib., 416. Adverse possession, Code, § 2679; l0Ga., 408; 17 Ib., 558. Prescription of twenty years; that length of time has not passed since enactment of law. It first became law in 1767; was repealed in 1805; revived again June 26 and December 8, 1806, see Prince's Dig., 315; repealed again January 22, 1852; 15 Ga., 549; acts of 1855-6, 233; 38 Ga., 439; 28 Ib., 130. Verdict should specify on what issue found, Code, sec. 3560; 58 Ga., 417. Conversation of sheriff with juror, 44 Ga., 200; 43 Ib., 20, 140; 42 Ib., 64; Smith v. Lovejoy, decided March 11, 1879.

T. H. Whitaker; A. H. Cox, for defendant, cited, on adverse possession, Code, sec. 2682; 1 Gr'lf Ev, 17; 1 Bouv. L. Dic, "Adverse Possession;"Ib., "Prescription;" 30 Ga., 896; 43 Ib., 352; 38 Ib., 439; 48 Ib., 334; 4 Wheat., 207; 1 Kent, 455; 34 Ga., 354; 7 Ib., 3. On disclaimer, Code, sec. 1947; 19 Ga., 288. On verdict, 57 Ga., 47; 52 Ib., 543; 49 Ib., 283. On competency of jurors, 60 Ga., 520. On newly-discovered evidence, 41 Ga,, 426.

BLECKLEY, Justice.

The evidence in the record conducts, partly by direct statement, and partly by reasonable inference, to the follow-ing Conclusions of fact: That on the marriage of Jones and wife in the year 1854 or 1855, most probably in the former, John Daniel, her father, purchased the land now in dispute for his daughter as a marriage portion, removed them...