Fox v. Lofton

• Decision Date: 17 February 1938
• Docket Number: 12210.
• Citation: 195 S.E. 573,185 Ga. 456
• Parties: FOX v. LOFTON et al.
• Court: Georgia Supreme Court

195 S.E. 573

185 Ga. 456

FOX v. LOFTON et al.

No. 12210.

Supreme Court of Georgia

February 17, 1938

Error from Superior Court, Effingham County; Wm. Woodrum, Judge.

Suit for a tract of land by Nettie Collins Lofton, individually and as next friend of Sally Lucas, a minor, and others against T. M. Fox. Judgment for the plaintiffs, and the defendant brings error.

Reversed.

Syllabus by the Court.

1. The plaintiffs were not seeking to establish any affirmative equitable relief, but relied for recovery on an alleged legal title in an action at law. Under these circumstances, the case was not one for the interposition of an equitable bar by laches. Redding v. Anderson, 144 Ga. 100(4), 86 S.E 241, and citations.

2. The ground of the motion for new trial based on alleged newly discovered evidence is without merit. That a defendant being sued for land and mesne profits did not anticipate that witnesses for the plaintiff would testify that the defendant 'operated 4500 turpentine faces on the 46-acre tract of land in dispute, when in fact defendant was only operating 642 turpentine faces on the timber on said 46 acres,' does not authorize the grant of a new trial on the ground that he has witnesses who will now testify that he only cut 642 faces.

3. A new trial will not be granted because the court, over the objection that it was hearsay, permitted a witness to testify that her ancestor said to her that he had given one of his children, not a party to the suit, a piece of land; it not being the land in dispute.

4. Where a number of plaintiffs as tenants in common sue at law for land, and the proof shows that there are others besides the plaintiffs who own an interest in the premises sued for a verdict for the plaintiffs must be set aside. Shaddix v. Watson, 130 Ga. 764, 61 S.E. 828.

5. When one of several plaintiffs in a suit for land died before the trial, and no new party was made, but the dead plaintiff remained a party, a verdict for the plaintiffs for the entire interest in the land sued for cannot stand. Irwin v. Shuford, 144 Ga. 532, 87 S.E. 674; Ellard v. Coleman, 145 Ga. 18, 88 S.E. 554.

Nettie Collins Lofton, Marie Harden, Florence Gadson, Le Roy Lucas Robert Lucas, James Lucas, and Nettie Collins Lofton, as next friend of Sally Lucas, a minor, sued T. M. Fox for a certain tract of land. Attached to the petition is an 'Abstract under which petitioners claim title,' which contains the following statement: 'That the manner in which the plaintiffs obtained and sold title to said tract of land is as follows: About the year 1903 Jackson Morgan departed this life, leaving as his sole survivors and heirs at law Nettie Collins, Mary Givens, Bessie Lucas, and Willie Morgan children, and Phillis Morgan, widow. The said Mary Givens having since died intestate, leaving as her survivors and sole heirs Florence Gadson and Mary Harden. The said Bessie Lucas having since died intestate, leaving as her survivors and sole heirs Le Roy Lucas, Robert Lucas, James Lucas, and Sally Lucas. The said Nettie Collins, now Lofton, being in life and a party to this action. The said Willie Morgan having received his portion of said estate by gift prior to the death of and during the lifetime of the said Jackson Morgan. The said Phillis Camm having departed this life after subsequently marrying and after having failed to obtain a year's support or electing to take a child's part as provided by law, and her right of dower having been barred by the statute at the time of her death without her ever having been elected to take either dower or to obtain a year's support or a child's part as provided by law. That the said Jackson Morgan died intestate, and that Jack C. Reddick clerk of the superior court of Screven County, Georgia, duly qualified as administrator of the estate of the said Jackson Morgan in the court of ordinary of Screven County, Georgia, on or about the ___ day of _____ 1903, and that the said administrator has never been discharged. That said property was never sold by order of court of ordinary of Screven County, as provided by law for the purpose of payment of debts and...