Donald v. Groves

• Decision Date: 12 March 1925
• Docket Number: (No. 4647.)
• Citation: 126 S.E. 583,160 Ga. 163
• Parties: DONALD v. GROVES.
• Court: Georgia Supreme Court

160 Ga. 163

126 S.E. 583

DONALD

v.GROVES.

(No. 4647.)

Supreme Court of Georgia.

March 12, 1925.

(Syllabus by Editorial Staff.)

Error from Superior Court, Fulton County; E. D. Thomas, Judge.

Suit by Alma Groves against John F. Donald. Judgment for plaintiff, and defendant brings error. Reversed.

John F. Donald and his wife, Bertha Donald, owned as tenants in common a house and lot in the city of Atlanta. They acquired title thereto under a deed from Annie E. Schenck, dated February 23, 1916. On May 29, 1916, Bertha Donald died, leaving Alma Groves, a daughter, and her husband as her sole heirs at law. After her death, her husband remained in exclusive possession and use of said property. On May 27, 1922, Alma Groves filed her equitable petition against John F. Donald, in which she sought to have him account to her for her share of the rents of such property, and for a partition of such property by sale thereof, and for receivership; the same being incapable of partition in kind.

In his answer, Donald admitted the facts above stated. He set up that, at the time Annie E. Schenck conveyed to him and his wife said house and lot, his wife paid the sum of $75 on the purchase price, and that he paid the remainder thereof in the mannerwhich will now be stated. They borrowed from the Atlanta Banking & Savings Company, on March 3, 1916, $675 which was used in paying the balance of the purchase money of said property. He has paid every dollar of this loan; his wife having died withn two months after said loan was made. He has paid the sum of $90 for a sewer in front of said property, $28.20 for a fence around the same, $92.76 for city taxes, and $67.07 for state and county taxes. By an amendment, he alleged that he and his wife purchased this property from Annie E. Schenck on February 17, 1911, for $900 to be paid in monthly installments of $10 for 80 months and one for $25, with a cash payment of $75. He paid 48 of said notes, the last one on February 25, 1915, and said loan from said bank was used to improve the property and pay the balance of the purchase money. Since the filing of this suit, he has paid $26.77 city taxes, and $11.80 state and county taxes. He is entitled to one-fourth of the interest at 7 per cent, on the loan of $675 he paid the Atlanta Banking & Savings Company from the date of payment, which was September 27, 1920. He is entitled to one-half of the interest on the 48 notes paid to Mrs. Schenck, and one-fourth of the interest on the total thereof from the time of paying the last note.

The case was referred to an auditor to pass upon all issues of law and fact. The auditor ruled that the defendant could not testify to facts occurring prior to the death of his wife, which would defeat her interest in this property, upon the ground that his mouth was closed by her death as to such tacts, and that, even should the auditor permit him to offer such testimony, he would have to accept the uncorroborated statement of one tenant in common against another whose mouth had been sealed by death. To this ruling the defendant excepted. The trial judge overruled this exception, and sustained the auditor. To this ruling the defendant excepts.

The auditor further ruled that the evidence offered, as to improvements made on such property, was not sufficient to establish that they were made, or, if made, when they were made. For this reason he disallowed the claim of the defendant for such improvements. To this ruling the defendant excepted. The trial judge sustained the auditor and overruled the defendant's exception. The defendant assigns error upon this ruling.

The defendant further excepted to the report of the auditor on a question of fact, "in not reporting the 48 notes signed by John and Bertha Donald, payable to Mrs. Annie E. Schenck, dated February 17, 1911, for the purchase money of the property in question and paid by him with interest." The court overruled this exception, and on this ruling the defendant assigns error.

Jas. E. Warren, of Atlanta, for plaintiff...