Loyless v. Blackshear

• Decision Date: 31 July 1871
• Citation: 43 Ga. 327
• Parties: JAMES E. LOYLESS, plaintiff in error. v. THOMAS J. BLACKSHEAR et al., defendants in error.
• Court: Georgia Supreme Court

43 Ga. 327

JAMES E. LOYLESS, plaintiff in error. v. THOMAS J. BLACKSHEAR et al., defendants in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1871.)

Evidence. Tenants-in-common. Petition. Before Judge Harrell. Terrell Superior Court. March Term, 1871.

Thomas J. Blackshear et al. averred that they were tenant-in-common with Loyless in certain land, and prayed for its partition. He resisted, upon the ground, that plaintiffs had no title to said land, that they were not tenants-in-common with him, and that he had the exclusive title to the same. Plaintiffs read in evidence a deed, made 26th January, 1859, in usual form, by one "Walker, of the one part, and Patrick H. Mills, trustee for Martha E. Mills and her children, of the other part;" and it witnessed that, for $800, paid by "Patrick H. Mills, trustee, as aforesaid, " Walker conveyed the land in dispute to said Mills, "trustee, as aforesaid, " *to hold the same to said "Mills, trustee, as aforesaid, in fee simple, " and ended with usual warranty to said Mills, "trustee, as aforesaid."

It was shown that Loyless was in possession of said land; that Mrs. Blackshear was the wife of Mills alluded to in said deed, and the other minor plaintiffs were Mills' children; that Mills died in 1859; his wife married Ravens; he died, and she married Blackshear, and is still alive. Plaintiffs closed. Defendant moved for a nonsuit, upon the ground, that Walker's said deed conveyed a life-estate to Mrs. Blackshear, (then Mills,) and remainder to her children, and they could not sue during her life. The motion was overruled.

Defendant then offered in evidence a petition, filed by Ravens as trustee for his wife, in 1863, in which it appeared that he averred that he held this land as her trustee; that there was a fi. fa. against "the trust-estate, " and prayed that he be allowed to sell it, pay said fi. fa., and invest the balance "for the benefit of the trust-estate." Mrs. Ravens joined in this request, and the Judge granted the or-der. They then offered in evidence a deed from Ravens, as trustee for his wife and her children, conveying said property to H. Rogers and W. H. Brotherton for $3,300 00, paid in January, 1864, and they read in evidence other deeds, bringing the title down to Loyless.

Defendant's counsel then proposed to show that part of said $3,300 00 was applied to paying the debts of the trust-estate, and the remainder was invested in a farm for the benefit of Mrs. Blackshear (then Ravens,) and her children, in pursuance of the terms and provisions of said order. The Court rejected the evidence as irrelevant.

The Court told the jury that plaintiffs were entitled to a verdict, and that the only question was, whether the land should be divided by metes and bounds, or sold. The jury found that the land be sold, and that the proceeds be equally divided between Mrs. Blackshear, her two children and Loyless.

*Defendant assigns as error the refusal to non-suit, the refusal to allow proof of the disposition of said $3,300 00, and the instructions to the jury to find for plaintiffs.

C. B. Wooten, for plaintiffs in error.

W. A. Hawkins, for defendant.

WARNER, Judge.

1. This was an application by the children of Martha E. Mills for a partition of certain described lands, in the town of Dawson, and county of Terrell, against the defendant. The petitioners claim title under a deed made by John T. Walker, on the 26th of January, 1859, conveying the premises in dispute to Patrick H. Mills, trustee for Martha E....