Livingston v. Taylor
| Decision Date | 09 February 1909 |
| Citation | 63 S.E. 694,132 Ga. 1 |
| Parties | LIVINGSTON et al. v. TAYLOR et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
In the summary of the plaintiff's contentions as made in the petition, the court should not omit any substantial issue of the plaintiff's case, which finds support in the evidence; but a failure in this regard will not result in a new trial, where it appears that the court, in the charge as a whole, so presented the law in its application to the omitted issues as to warrant a reasonable inference that the jury understood the plaintiff's full contentions.
[Ed Note.-For other cases, see Trial, Cent. Dig. §§ 706, 707; Dec. Dig. § 295. [*]]
In civil cases it is erroneous to charge the jury that they are the judges of the law and the facts of the case.
[Ed Note.-For other cases, see Trial, Cent. Dig. § 467; Dec. Dig § 199. [*] ]
The charge that the pleadings of the parties have no probative value was but a cautionary instruction not to confound pleadings with proof, considered in connection with its context and the general aspect of the case as revealed by the evidence, was not open to the criticism that it deprived the plaintiff of the effect of the admission, by the defendant's answer, of certain facts alleged in the petition.
[Ed. Note.-For other cases, see Trial, Cent. Dig. § 448; Dec. Dig. § 194. [*] ]
The deeds allowed in evidence were the defendant's muniments of title, and relevant evidence.
[Ed. Note.-For other cases, see Quieting Title, Cent. Dig. § 90; Dec. Dig. § 44. [*]]
In an equity case, where a special verdict is demanded by the parties, and questions covering the issues of fact are submitted to the jury for answer, the judge may, in his discretion, limit his instructions to such matters as are involved in the questions submitted, and omit general instructions covering the law of the whole case.
[Ed. Note.-For other cases, see Trial, Cent. Dig. § 481; Dec. Dig. § 215. [*] ]
(a) A party who, after invoking a special verdict, allows a general verdict to be received and published in open court, in the presence of his counsel, without objection or motion to have the jury retired with a direction to find a special verdict, will be deemed to have waived his right to a special verdict.
(b) Under the recitals in the bill of exceptions the verdict returned was a general one, and the jury failed to answer the questions submitted by the court.
[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 818, 862; Dec. Dig. §§ 345, 361. [*]]
"The law confers upon trial judges a discretion in granting or refusing new trials in cases where the verdict is alleged to be contrary to evidence and without evidence to support it, and imposes upon them the duty of exercising this discretion." Where the court, in his judgment denying a new trial, uses language indicating that he has not exercised his discretion, a new trial will be awarded where he molded his charge more with respect to special issues of fact submitted to the jury than to the general law applicable to all phases of the case, and the jury returned a general verdict instead of special findings of fact as directed by the court, and when certain minor errors appear in the charge.
[Ed. Note.-For other cases, see New Trial, Cent. Dig. § 10; Dec. Dig. § 6; [*] Appeal and Error, Cent. Dig. § 4607; Dec. Dig. § 1178. [*] ]
Error from Superior Court, Dodge County; J. H. Martin, Judge.
Equitable petition by Mary Livingston and others against J. D. Taylor, administrator of the estate of Lovett Brown, deceased, and others. Judgment for defendants, and plaintiffs bring error. Reversed.
Where answers to a portion of the special questions submitted were not published or read as the verdict of the jury, a general verdict having been returned by it and published as its verdict, and neither the answers nor the questions as a whole were signed by the foreman of the jury, and it does not otherwise appear by whom the answers were written, or that the jury ever made the same their verdict, the case stands as though no answers had been given to the questions and upon the general verdict.
Mary Livingston and the other heirs of Alfred Mullis filed their equitable petition against J. D. Taylor as administrator of Lovett Brown, and certain others alleged to be grantees of Brown, of certain portions of lot of land No. 216 in the Sixteenth district of Dodge county, to recover this lot of land from the defendants, and to have the deeds of the defendants thereto delivered up and canceled. The petition contained substantially the following averments: Alfred Mullis died on September 25, 1875, leaving as a part of his estate lot of land No. 216 in the Sixteenth land district of Dodge county. He left a will under which Brown was one of the executors, in which capacity Brown duly qualified. Lot 216 was bequeathed to his wife during widowhood, and upon her marriage was to revert to his estate. In 1877 his widow remarried, and Brown filed a petition to the ordinary for an order of sale, which was granted, and this lot, with other lands, was advertised for sale on May 7, 1878. Brown procured H. J. Sapp to bid for him at this sale, and the lot was knocked off to Sapp at $25, and he at once conveyed it to Brown according to his agreement. Prospective purchasers had asked Brown as to whether the sale would take place, and he had told them that he did not know when he would sell it and, if he sold it at all, it would only be for the purpose of perfecting titles. Brown waited till the crowd had dispersed and then sold the land, which was well worth $2,000, for $25. John S. Livingston owned land adjacent to the Mullis tract, and intended to bid at the executor's sale, but was dissuaded from bidding by the promise of the executor that, if he bought the land as he purposed to do, he would convey to Livingston 20 acres adjoining the latter's land; and afterwards the executor did convey to Livingston 20 acres pursuant to his promise. Brown had subsequently conveyed various portions of this lot to the other defendants, all of whom had full knowledge of his fraudulent conduct. The prayers of the petition were for the recovery of the land and mesne profits and for the cancellation of the defendants' deeds. The defendants answered, denying any fraud in the sale by Brown to Sapp, but asserting that it was regular and bona fide, and that the other defendants had purchased bona fide from Brown and without knowledge of his fraud, if any. They also set up in detail certain improvements placed on the premises as bona fide purchasers, together with their value; and prayed, if title be found in the plaintiffs, that they be given judgment for the value of their improvements. Upon the trial the case was submitted to the jury upon certain written questions, which they were instructed by the court to answer. The verdict read in open court was: The plaintiffs filed their motion for a new trial, which being overruled, they excepted.
A. C. Pate, B. R. Calhoun, and Olin J. Wimberly, for plaintiffs in error.
D. M. Roberts & Son, W. M. Morrison, and E. D. Graham, for defendants in error.
1. One ground of the motion for a new trial complains that the court in his charge to the jury failed to state the contentions of the plaintiffs in vital particulars. The instructions of the court in this regard were, substantially, that the plaintiffs contended that Alfred Mullis died seised and possessed of a certain lot of land; that Lovett Brown, as his executor under an order from the court of ordinary, sold the land in controversy, and at the sale the executor, though an intermediary, purchased the land; that such sale was voidable as to the legatees, if they saw fit, within the time prescribed by law, to attack such conveyance; and that they further contended that this proceeding was brought within that time. He further charged, in that connection, that the specific allegations upon which the plaintiffs relied for a recovery were set forth in the petition, which the jury would take out with them, and which it would be their duty to read carefully in order that they might intelligently pass upon the case under the issues made by the law and the evidence. The plaintiffs in error insist that in their petition they attacked the executor's sale as illegal on three grounds: (1) That the executor purchased thereat through an intermediary; (2) that the executor suppressed bidding upon the land at the sale by representing to prospective purchasers that it was uncertain whether he would sell the land on the day advertised, and, if he did sell, it would be only for the purpose of perfecting the title of the legatees under the will; and (3) that he dissuaded an owner of adjacent land from buying the property by agreeing that if he would not bid on the land he would convey him, without other consideration, 20 acres of the land which adjoined the land of this prospective purchaser. The plaintiffs further insists that they offered evidence tending to establish all three of their assaults upon the legality of the executor's sale, and that the court's formulation of their contentions limited their attack upon the sale to the allegation that the deed to the executor was voidable because he was a purchaser at his own sale. The court charged in the abstract the law as to constructive and actual fraud; and also to the effect that, if the purchaser at the sale did not act in behalf of the executor in the purchase, but bought the land in his own right in good faith, and afterwards sold it to the executor, the executor would have acquired a good title, "provided that he was guilty of no fraudulent conduct which would affect the...
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