Hines v. Moore
| Decision Date | 13 April 1929 |
| Docket Number | 7012. |
| Citation | 148 S.E. 162,168 Ga. 451 |
| Parties | HINES et al. v. MOORE et al. |
| Court | Georgia Supreme Court |
Syllabus by Editorial Staff.
Where deceased died before completing payments on land purchased and widow elected to take for year's support cash paid on such land and widow and children paid balance due on purchase price of land and received deed as tenants in common, equity of deceased became merged in conveyance from guardian to widow and children as tenants in common, and widow could not sell timber growing on land on theory that land had been set aside to her and children as year's support, but purchaser of timber from widow received only interest of widow in timber as tenant in common with her children under Civ. Code 1910, § 3682.
Where conveyance of timber by widow, on theory that land had been set aside for year's support, was not officially attested or probated, conveyance was not properly recorded and did not come within exceptions to rule requiring subscribing witnesses to be produced to prove execution of writing under Civ. Code 1910, § 5833, and was properly excluded from evidence.
Where conveyance of timber on land claimed by widow as year's support was not properly recorded and did not come within exceptions to rule requiring subscribing witnesses to prove execution of writing under Civ. Code, 1910, § 5833, court did not err in refusing to permit one of vendees in instrument to testify that it was signed by vendor.
Refusal to permit witness to testify for defendant as to value of certain timber which witness sold to another held proper, where such timber was not involved in litigation.
In proceedings involving timber conveyed by widow on land conveyed to widow and children as tenants in common instrument purporting to be conveyance by widow was properly excluded, where testimony of widow concerning its execution did not show expressly or by reasonable implication that she signed instrument.
In proceedings involving timber conveyed by widow, rejection of instrument purporting to convey timber, if error, was not harmful to vendees of timber, where vendees had cut and received more of timber conveyed than they were entitled to under instrument, if it had been admitted in evidence.
Where there was no error assigned on ruling out of testimony set out in ground of amendment to motion for new trial, no question was presented for decision.
All persons found within limits of state are to be deemed so far citizens thereof as that right of jurisdiction will attach to such persons.
Any court of any county of state which can serve process on nonresident traveling through state acquires jurisdiction over his person.
Where defendants acknowledged service of petition seeking equitable relief and waived process, and defendant while in county of Jefferson was served personally with copy of petition and process, superior court of Jefferson county had jurisdiction of persons of defendants, and they were residents of Jefferson county for purposes of petition under Civ. Code 1910, § 5527, and hence plea to jurisdiction, setting up that no equitable relief was prayed against any defendant who resided in such county, was not well taken.
In order for pendency of first suit to constitute good cause for abatement of second suit, parties must be same in both suits.
In order to be available in abatement of second suit under Civ Code 1910, § 4331, former suit must have been brought for same cause of action.
Error from Superior Court, Jefferson County; R. N. Hardeman, Judge.
Suit by Hattie Moore and others against W. J. Hines and another. Judgment for plaintiffs, defendants' motion for new trial was overruled, and defendants bring error. Affirmed.
J. B. & T. R. Burnside, of Thomson, for plaintiffs in error.
M. C Barwick, of Louisville, for defendants in error.
Syllabus OPINION.
1. The admission of the evidence objected to by the defendants, as set out in the first, second, third, fourth, and fifth grounds of the amendment to the motion for new trial, did not require the grant of a new trial.
2. Where the deceased in his lifetime purchased from Orilla Eve guardian, under order of the superior court, a tract of land for the sum of $1,300, made a cash payment thereon of $300, and agreed to pay the remainder of the purchase money in three annual payments, but died without making any of the deferred payments, and where, upon the application of his widow for a year's support for herself and their 10 minor children, the appraisers set aside for such support $1,409.75, which the widow elected to take in certain items of personalty at named prices, "100 acres land $400.00" and "Cash paid on the Rilla Eve Place $300.00," this latter place being the one so purchased by the deceased, and where the widow and children of the deceased paid in full to the guardian the balance due on the purchase money, this being done with profits made by them from the cultivation of said tract of land so purchased by the deceased, and where the guardian thereupon by deed conveyed said tract of land to the widow and minor children as tenants in common, the deed reciting the facts above stated, the equitable interest of the widow and minor children in said tract of land growing out of the setting apart to them, as a part of the year's support, the equity of the deceased therein, became merged in the conveyance from the guardian to them as tenants in common of said tract of land; and thereafter the widow could not sell and convey the timber...
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