Driver v. Wood

• Decision Date: 11 December 1901
• Citation: 114 Ga. 296,40 S.E. 257
• Parties: DRIVER v. WOOD et al.
• Court: Georgia Supreme Court

40 S.E. 257

114 Ga. 296

DRIVER

v.WOOD et al.

Supreme Court of Georgia.

Dec. 11, 1901.

CONSENT DECREE—CONCLUSIVENESS.

A decree rendered in accordance with a consent verdict, though it may not be valid asa judgment of the court, will, in the absence of fraud, accident, or mistake, be operative as an agreement binding upon all the parties thereto. (Syllabus by the Court.)

Error from superior court, Haralson county; C. G. Janes, Judge.

Action by Jesse Driver against Richard Wood and another. Judgment for defendants, and plaintiff brings error. Affirmed.

Edwards & Ault and W. F. Brooks, for plaintiff in error.

C. P. Gordon, R. D. Jackson, S. L. Craven, and Lloyd Thomas, for defendants in error.

FISH, J. This was complaint for land, brought by Jesse Driver against Richard Wood and W. C. Adamson, to recover the S. ¹/₄ of the E. ¹/₂ of lot of land 159 in the Seventh district of Haralson county. From the evidence submitted on the trial by the plaintiff, it appeared that on December 19, 18S4, Jacob Driver conveyed to the plaintiff the E. ¹/₂ of this lot of land; that in January, 1880, Nancy A. Driver brought an equitable petition against Jacob Driver, her husband, Jesse Driver, and John W. Driver, in which she prayed for permanent alimony out of her husband's estate, including lot of land 159 in the Seventh district of Haralson county, and for the cancellation of the deed from Jacob Driver to Jesse Driver to the E. ¹/₂ of this lot, and of a deed, executed upon the same date, from her husband to John W. Driver to the W. ¹/₂ of this lot, upon the ground that these deeds were made for the purpose of defrauding her out of her alimony in the land, and that the grantees in such deeds were parties to the fraud. It appeared further that all the defendants answered her petition, and that upon the trial of the alimony case the jury found the following verdict: "We, the jury, find and decree for the plaintiff one-fourth of lot number one hundred and fifty-nine (159) in the Seventh (7) district and fifth (5) section, it being a strip across the south side of said lot wide enough to make one-fourth of the whole lot, and decree title in pl'ff also, to the southeast fifty acres of lot of land No. (155) one hundred and fifty-five in same district, in full of her allowance for permanent alimony. Let the def'ts pay the costs, except pl'ff's witnesses." A decree was duly rendered by the judge upon this verdict, decreeing that title to the land described in the verdict "vest in [Mrs. Driver] in full satisfaction of her permanent alimony." Upon the trial of the present case, Price Edwards, Esq., a witness for the plaintiff, testified "that he and McBride were counsel for the defendants in the suit of Nancy A. Driver for alimony; that at the time the verdict was agreed on in that case he does not remember that McBride was present at the conference with counsel on the other side as to the settlement of the same; that the verdict rendered therein was in accordance with their agreement, he supposes, but he does not remember that anything was said about any distinction between an ordinary verdict and decree for permanent alimony in real estate and an absolute title; thatat that time his attention had not been called to the legal effect a decree for permanent alimony had on the title to property set apart as permanent alimony." Jesse Driver, the plaintiff, testified in his own behalf that he was present at the trial when the verdict was rendered, and that two or three months after the verdict the sheriff and surveyor ran off 50 acres on the south side of lot 159, and the sheriff, by virtue of a writ of possession, put Mrs. Nancy A. Driver in possession of the same, and that she died in May or June, 1899. In the abstract of title...