Lassiter v. Simpson

• Decision Date: 26 February 1887
• Citation: 3 S.E. 243,78 Ga. 61
• Parties: LASSITER and others v. SIMPSON and others.
• Court: Georgia Supreme Court

3 S.E. 243

78 Ga. 61

LASSITER and others v. SIMPSON and others.

Supreme Court of Georgia

February 26, 1887

Error from superior court, Decatur county; BOWER, Judge.

Bill by Edgar A. Simpson, Emma, his wife, and said Simpson, as next friend of Annie Moore, for cancellation of certain deeds recovery of the land conveyed thereby, and for general relief. The bill set out that the complainants Emma Simpson and Annie Moore were the sole surviving children of one Augustus Moore, who died intestate in 1864, seized of the land in controversy, the same being lots 355 and 366 in the Nineteenth district of Decatur county; that his widow, who survived him, took out letters upon his estate, and administered thereon until January 5, 1865, when she intermarried with one John Cameron, who succeeded to the administration, John Lassiter and William Chester being his bondsmen; that one-third of the personal property was set apart to the widow in settlement of her claims upon the estate; that Cameron unlawfully procured an order of sale of said lands, and at the sale they were bought by Lassiter, who subsequently transferred them to Cameron, and that no consideration passed between the parties to these transfers that thereafter Cameron traded these lands for others of Lassiter, and that the whole transaction was in fraud of the rights of Moore's heirs. The bill also alleged the death of Lassiter, leaving a widow, Julia, and A. B., B. F., and Eula Lassiter, children, in possession of the land. The complainant Annie Moore, having come of age pending the suit the bill was amended by making her complainant in her own name. The answers denied all the allegations of fraud, and set up a valid sale.

There was a verdict for the complainants, and a motion for a new trial having been overruled, judgment thereon. The defendants excepted thereto, assigning as error the overruling of said motion, which was based upon the following grounds: (1) Because the court erred in permitting counsel for complainants to amend their bill by striking the name of Edgar Simpson, as next friend of Annie Moore, and leaving the name of said Annie Moore as a party thereto; it appearing that she had arrived at the age of twenty years since filing suit. (2) Because the court erred in holding, over the objection of defendants, that John Cameron was a competent witness to testify to the facts that he was permitted to testify to, as will appear from brief of evidence. (3) Because the court erred in admitting in evidence, over objection of defendants' counsel, the deed made by John Cameron to John and B. F. Lassiter, movant insisting that in his opinion there is no allegation in said bill of any trade between Cameron and the two said Lassiters, nor of any complicity in the fraud alleged to have been committed by John Cameron and John Lassiter, by B. F. Lassiter upon complainants. (4) Because the verdict rendered is unauthorized by the pleadings in complainants' bill. (5) Because said verdict is contrary to law and the evidence introduced in said case; because said verdict is unsupported by law and evidence. (6) Because the verdict was contrary to the charge of the court, as follows: "The law presumes that the sale was legal; that there was no fraud at all until the contrary is shown by evidence that satisfies the minds of the jury that there was fraud in the sale. It being the complainant's case, they seeking to set up that the sale was fraudulent, the burden of proof is upon them to show fraud in the sale, and that these respondents had notice thereof." (7) Because since the trial...