Holton v. Mercer

• Decision Date: 30 November 1942
• Docket Number: 14344.
• Citation: 23 S.E.2d 166,195 Ga. 47
• Parties: HOLTON v. MERCER et al.
• Court: Georgia Supreme Court

23 S.E.2d 166

195 Ga. 47

HOLTON v. MERCER et al.

No. 14344.

Supreme Court of Georgia

November 30, 1942

Syllabus by the Court.

The petition in a suit for recovery of land alleged that the plaintiff's title was derived from a deed made by M. S H. through her attorney in fact in a security deed; that after M. S. H. delivered her security deed she delivered a warranty deed to L. V. P.; that thereafter the sheriff levied certain tax fi. fas. against L. V. P. on said land, and sold the same to Bacon County, and executed a deed thereto to the county, which later deeded the same to petitioners; that defendant also claims title to said land under the same grantor, M. S. H., as do petitioners, which last allegation was admitted by the defendant. The plaintiffs having introduced in evidence on the trial all the deeds just referred to, except one from the county to them, the omission to show a conveyance from the county to them did not require a finding in favor of the defendant on the theory that title was shown in a third person, it being apparent from the record that when counsel for defendant sought to show that the tax deed to the county was void because of an excessive levy, counsel for plaintiffs interrupted with the statement that 'we do not intend to claim title under the tax deeds.'

2. Where plaintiffs sue as grantees under a deed made by a person since deceased, the deed having been executed by one holding power of attorney, the defendant, claiming title under a former gift from the same grantor, is, under the Code, § 38-1603, an incompetent witness to testify to transactions between himself and said deceased, relating to said parol gift and his entry thereunder, followed by improvements on the faith thereof.

3. The return of the property for taxation, and the failure to return it by one who claims it as a gift, and the fact that it was sold for taxes as the property of another person, are relevant circumstances to illustrate the bona fides of the claim of ownership when that is an issue to be passed on. Even if it were irrelevant to admit some of the tax executions which were unsigned, their admission was not harmful error, when the defendant himself admitted he had paid no taxes thereon.

4. Where a witness's testimony as to a material issue has been shown to be untrue, the jury is authorized to disbelieve other portions of his testimony, although the latter not be directly contradicted by any other witness. This is especially true when such latter portions of his testimony relate to matters concerning his own knowledge or lack of knowledge, his good faith or absence of good faith, and his motives or reasons for his conduct.

5. The evidence authorized the verdict, and none of the exceptions show error requiring the grant of a new trial.

Mrs. E M. Mercer and Nathan Cohen brought suit against J. C. Holton, to recover 80 acres of land, and for certain equitable relief. The petition shows, that petitioners are the owners of said 80-acre tract of land, their title being derived from a security deed made by Mrs. M. S. Holton, the mother of the defendant, by her duly appointed attorney in fact, conveying 325 acres of land which included said 80 acres; that after Mrs. Holton delivered said security deed to her attorney in fact, she executed and delivered a warranty deed conveying all of her equity in the larger tract to Mrs. Lillian V. Puckett; all the conveyances referred to being duly recorded; that later the deputy sheriff of Bacon County levied five certain tax fi. fas. against Mrs. Puckett for taxes owing by her for the years 1932, 1933, 1934, 1935, and 1936, the same being levied on said 80-acre tract, and sold said tract at public outcry and executed thereto to the purchaser, Bacon County, a tax deed; that after obtaining deed from Mrs. Holton through her attorney in fact, conveying all of the 325 acres, petitioners on October 3, 1939, bought the 80-acre tract from Bacon County (the period of redemption having expired) along with another 25 acres of said 325-acre tract, which Bacon County had acquired at a tax sale held in October, 1928, for a stated consideration, and a deed to petitioners was made by the Board of Commissioners of Roads and Revenues of said county, conveying both the 80 acres and the 25 acres, and said deed was duly recorded; that 'J. C. Holton, the said defendant, also claims title to said 80-acre tract, more or less, described in the first paragraph of this petition, under the same grantor as do petitioners, namely, the said Mrs. M. S. Holton, the mother of said defendant, but no evidence of the title claimed by defendant appears on the records of the clerk of the superior court, or on the records of the ordinary of said county.'

Among other defenses, the defendant set up the following: 'The land here in question was given to this defendant by his mother in the winter of the year 1914. In the following year, the year 1915, defendant entered upon said land under said gift and made valuable improvements thereon by building a dwelling-house in which, throughout the years since, defendant has and still resides, and by making other valuable and substantial improvements. Since the year 1925 at the time it is claimed defendant's said mother made a deed to secure debt to Lennie Warnock, defendant was in possession of and living on said lands. At the time of the alleged conveyance to Mrs. Lillian V. Puckett defendant was living on and in possession of said lands. At the time of the purported sales to petitioners, defendant was living on and in possession of said lands; and in addition thereto, on October 3, 1939, at said alleged sale at which petitioners claimed to have become the purchasers of said land at said alleged sale by Lennie Warnock, as attorney in fact of Mrs. M. S. Holton, this defendant stated to all persons, including petitioners, that this defendant was the owner of said described parcel of land, and put all persons present, including petitioners, on notice that any one buying said land at said sale would buy same subject to the claim of this defendant thereto.'

On the trial the plaintiffs introduced in evidence a deed from Hancock, deputy sheriff of Bacon County, referred to above, but made no proof of any deed from Bacon County to plaintiffs. It was shown that Mrs. M. S. Holton was dead at the time of the trial. A verdict in favor of the plaintiffs was returned. The defendant's motion for new trial was overruled, and he excepted.

H. L. Causey, of Alma, and Highsmith & Highsmith, of Baxley, for plaintiff in error.

C. A. Williams and T. J. Townsend, both of Alma, for defendants in error.

GRICE Justice.

1. It is contended in the brief of the defendant (plaintiff in error) that, the plaintiffs having in their petition alleged that in 1937 the land sued for was sold for taxes and bought in by Bacon County, and having introduced in evidence a tax deed into the county to the land involved, but failed to show any title from the county to them, an insuperable barrier was thereby raised against a legal verdict in their favor; that the plaintiffs having alleged title into the county, and having introduced in evidence a deed conveying the land to the county, they are in the position of showing paramount outstanding title out of themselves. We recognize the law to be that if at the trial an outstanding title be shown superior to that of the plaintiff, he can not recover, although it not be shown that the defendant had title. Brumbalo v. Baxter, 33 Ga. 81; Jones v. Sullivan, 33 Ga. 486; Blalock v. Redwine, 191 Ga. 169, 12 S.E.2d 639. Also that facts alleged in a petition are constructive admissions in favor of the defendant, and need not be proved. The complainant can not deny them. Peacock v. Terry, 9 Ga. 137; Armour v. Lunsford, 192 Ga. 598, 15 S.E.2d 886. We do not think, however, that these principles control the issue here made, under the facts as they appear in this record. In the first place, petitioners set forth a title derived from Mrs. M. S. Holton, and the petition contains the statement that 'the said defendant claims title * * * under the same grantor as do petitioners, namely the said Mrs. M. S. Holton.' This is a definite statement that the plaintiffs rely on the title which they derived from the sale under the security deed made to them by Mrs. Holton, through her attorney in fact. There is no statement that they rely on the tax title, though they mention it. Again, when defendant's counsel asked questions of a witness which could have no other relevancy than to show that the tax deed was void because of an excessive levy, he was interrupted by counsel for plaintiffs with the statement that: 'We do not intend to claim title under the tax deeds.' The mere mention in the petition of a levy and sale of this property for taxes against Mrs. Puckett, and that a deed thereto was made to the purchaser, Bacon County, will not be sufficient to show an outstanding title in the county, in view of the attack on the deed, as stated, the apparent acquiescence in the success of such attack, and the express statement of the counsel for plaintiffs that they did not rely on the tax deed. This was a virtual agreement with the adversary that no title had passed thereunder, and amounted to the hoisting of a white flag in surrender of any rights they might otherwise have asserted under the tax deed. Under the circumstances it could not be said that the plaintiff must lose his case because he showed an outstanding paramount title in a third person.

2. One ground of...