Dollar v. Dollar
| Decision Date | 10 October 1958 |
| Docket Number | 20174,Nos. 20173,s. 20173 |
| Citation | 214 Ga. 499,105 S.E.2d 736 |
| Parties | Joe Brown DOLLAR v. L. W. DOLLAR. L. W. DOLLAR v. Joe Brown DOLLAR. |
| Court | Georgia Supreme Court |
Bell & Baker, R. A. Bell, Cairo, for plaintiff in error.
Forester & Calhoun, Marcus B. Calhoun, Thomasville, for defendant in error.
Syllabus Opinion by the Court
On November 20, 1956, Joe Brown Dollar filed in Grady Superior Court his application for partition of certain lands in said county as therein described. The petition recited that the plaintiff and defendant, L. W. Dollar, 'are the common owners in fee simple' of said lands; that the interest of the plaintiff and the defendant respectively in said lands 'is as follows: Joe Brown Dollar a six-sevenths interest; L. W. Dollar a one-seventh interest.' The application further recited that the parties are sui juris; that the defendant is a nonresident of the State of Georgia, residing at a stated address in Detroit, Michigan; that the plaintiff was desirous of having said lands partitioned as between himself and the defendant; that the plaintiff was bringing into court his title deeds and title; and the prayers of the petition were that his title deeds and title be examined and established by the court, and for the appointment of commissioners for the partition. Service was perfected on the nonresident defendant, and on January 18, 1957, within the time provided by law, he filed his answer, which as amended admitted that the plaintiff and defendnat are the common owners of the described land, but denied that the interest of each was as alleged in the petition. The answer as amended alleges that the defendant owns a three-sevenths undivided interest in the lands in question, and that the interest of the plaintiff is not more than four-sevenths. In his answer, the defendant objected ' to the partitioning of said property until such time as the exact interest of the tenants in common therein is determined,' alleging that 'said property formerly belonged to his father, W. A. Dollar, and that it passed under the will of W. A. Dollar to the following persons: Nancy Dollar Faircloth, James Eddie Dollar, Willie Blackman Dollar, Henry Grady Dollar, Leslie Dollar.' Earl Dollar, and Hoke Smith Dollar.' The answer further alleged that the defendant acquired a one-seventh undivided interest in said property under the will, and that he has purchased the interests of Nancy Dollar Faircloth and Willie Blackman Dollar, copies of the deeds being attached and made a part of the answer. The prayers of the answer as amended were 'that the court fix and establish by decree the exact interests of the parties hereto in said land, all as provided by law, and that he [the defendant] have such other relief as to the court may seem just and proper.'
On the issues as raised by the pleadings, the case came on for trial before a jury on September 5, 1957. The plaintiff offered, and there was admitted in evidence, a quitclaim deed dated November, 1952, from James E. Dollar, H. G. Dollar, Earl D. Dollar, and H. S. Dollar, four of the seven children to whom the property passed under the will of their father, to the plaintiff, Joe Brown Dollar. There is no dispute with respect to the fact that the defendant, L. W. Dollar, by virtue of the will, owned a one-seventh interest in the property. Therefore, this litigation involves the remaining two-sevenths, devised to Nancy Dollar Faircloth and Willie Blackman Dollar. The plaintiff contends that, by virtue of parol contracts of sale and purchase and the payment of $1,300 each to his sister Nancy and his brother Willie, he acquired the one-seventh interest of each in the property in question; whereas the defendant contends that he acquired these two-sevenths of the property by virtue of quitclaim deeds dated August 3, 1955, and March, 1956, respectively, from Nancy Dollar Faircloth and Willie B. Dollar. The plaintiff offered, and there was admitted in evidence, a check signed by Joe B. Dollar, as maker, made payable to W. B. Dollar, dated August 21, 1952, drawn on Cairo Banking Company, in the amount of $1,300, containing a recital thereon that it was for 'Share in full of Willie Blackman Dollar's interest in north half of Lot No. 295 and interest in Lots 294 and 306,' containing the endorsement on the back thereof of the said payee, and with the back's stamp thereon showing that it was paid on presentation. The trial judge instructed the jury that they were not concerned with the partitioning of the land, and thus confined the issue to a determination of the interest of each party in the land. The jury returned a verdict partly in favor of the plaintiff and party in favor of the defendant, in the following form: 'We the jury give Joe Brown Dollar the one-seventh portion claimed by Willie B. Dollar and we give the one-seventh portion claimed by Nancy Faircloth to Leslie W. Dollar.' Judgment was entered accordingly, which recites that the plaintiff, Joe Brown Dollar, is adjudged to have five-sevenths, and the defendant, L. W. Dollar, two-sevenths interest in the property in question.
A motion for new trial was filed by the plaintiff on the general grounds, and subsequently amended by adding six special grounds. The first special ground charged that the verdict of the jury insofar as it found in favor of the defendant as to the one-seventh interest formerly owned by Nancy Jane Faircloth in the lands described in the petition or application for partition is contrary to evidence and without evidence to support it; and the remaining five special grounds complain in one form or another of the failure of the court to charge the principle of law contained in Code § 37-116, to the effect that On May 31, 1958, the motion for a new trial as amended was denied on each and every ground thereof, and the plaintiff excepts to that judgment.
By cross-bill of exceptions the defendant complains of the ruling of the trial court in admitting evidence relative to the acquisition of title by the plaintiff by parol contract and payment of the purchase price when the pleadings contained no reference or statement as to the acquisition of title in this manner. Held:
1. The plaintiff, Joe Brown Dollar, testified that he paid his sister, Nancy Dollar Faircloth, $1,300 in cash, in March, 1952, for her one-seventh interest in the lands in question; that he did not have a deed prepared for her to sign at the time; that he told his sister he would have one made out and he wanted her to sign it, and that she answered, 'Well, all right, I'll sign it'; that he had been unsuccessful in getting his sister to sign the deed which he had prepared; and that he testified substantially to this same effect in the Court of Ordinary in 1955, in the will case. The defendan, L. W. Dollar, testified that he paid his sister, Nancy Dollar Faircloth, $800 in cash, on August 3, 1955, for this same one-seventh interest in the land, the quitclaim deed which she executed on that date being tendered and admitted in evidence; that this deed was prepared after the hearing in the ordinary's court, and after his lawyer and he had checked the title records; that he was present at the Court of Ordinary of Grady County when this will case was tried; that he heard Joe Brown Dollar testify in that case; that, While it is a well-established rule of law that 'The testimony of a party in his own behalf when contradictory will be construed most strongly against him, and he is not entitled to a finding in his favor if that version of the testimony most unfavorable to him shows that the verdict should be against him' (Partain v. King, 206 Ga. 530(1), 57 S.E.2d 617, 618), there is another well-established principle of law that, while the evidence of a party testifying in his own behalf should generally be construed most strongly against him, it should still be construed in accordance with the manifest intent and purpose of the witness as disclosed by his testimony. Golding v. Parrish, 26 Ga.App. 495(4), 106 S.E. 743. See also Sappington v. Bell, 115 Ga. 856 (1), 42 S.E. 233; Chandler v. Southern Ry. Co., 113 Ga. 130, 132, 38 S.E. 305; Lancaster v. Daniel, 178 Ga. 264(4), 172 S.E. 916; Vogt v. Harris, 209 Ga. 749, 75 S.E.2d 808; Southern Bank of State of Georgia v. Goette, 108 Ga. 796, 33 S.E. 974. We do not agree with counsel for the plaintiff in error that the testimony of the defendant was 'equivocal if not altogether meaningless' (Bullard v. Bullard, 214 Ga. 122, 124(2), 103 S.E.2d 570), when counsel, in what appears to have been an effort to clear up the statement, 'no, not those exact words, I do...
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