Milner v. Vandivere

• Citation: 12 S.E. 879,86 Ga. 540
• Parties: MILNER et al. v. VANDIVERE et al.
• Decision Date: 19 January 1891
• Court: Georgia Supreme Court

12 S.E. 879

86 Ga. 540

MILNER et al. v. VANDIVERE et al.

Supreme Court of Georgia

January 19, 1891

Syllabus by the Court.

1. In a joint action by tenants in common for the recovery of land where an equitable defense had been filed, it was error to charge the jury that if, for any reason, any of the plaintiffs could not recover, none of them could recover. Under the practice in this state, where an equitable defense is set up and prevails against the right of any of the plaintiffs to recover, the common-law rule as to actions of ejectment, that all the plaintiffs shall recover or none does not apply, but the same rule and measure of justice is to be applied as in proceedings in equity.

2. If the sale which purported to convey the legal title of the plaintiffs to the land in controversy was illegal, the legal title was still in them, and the law did not require them before bringing their action, to tender the defendant the amount of the purchase money he had paid for the land. It was therefore error to charge the jury that if the mother of the plaintiffs sold the land to the defendant, and used the money received therefor in the support of the plaintiffs, or any of them, the plaintiffs could not recover unless they tendered back the amount of the purchase money prior to the bringing of the action, or unless he had realized it from rents over and above the value of the improvements.

3. The action was by some of the heirs at law of the deceased owner. The equitable plea of the defendant set up, among other things, that the land was sold at administrator's sale to raise money for a year's support set apart by the ordinary for the widow and the minor children; that the purchaser at that sale resold to the widow, who in turn sold to the defendant; that he was an innocent purchaser without notice of any defect or irregularity, and that the purchase money paid by him was used for the support and maintenance of the widow and the minor children. The plaintiffs contended that the year's support was not properly set apart, and that the sale was illegal and unauthorized. Held that, if it should appear at the next trial that the year's support was properly set apart to the widow and minor children, and that the land was sold to raise money for the year's support, and sold at a fair price, and the money was used by the widow and the minor children for their support and maintenance; or, whether the year's support was properly set apart or not, if the other facts stated should appear, and it should also appear that the amount thus paid by the defendant and used by the widow and minor children for their support and maintenance was a fair and reasonable amount to be allowed them for a year's support,--this would show an equity on the part of the defendant superior to the legal title of the plaintiffs. If it should appear, however, that the widow and only a part of the minor children used the money for their support and maintenance, the other minor children receiving no benefit therefrom, the legal title of the latter would be superior to the defendant's equity, and they might recover, although their co-plaintiffs could not.

4. The specification in the bill of exceptions of the parts of the record material to a clear understanding of the errors complained of does not include any demurrer to the declaration. The clerk, therefore, had no authority for certifying any such document as a part of the record; and neither the demurrer, nor any rulings of the court thereon nor any exception thereto, entered pendente lite, can be considered as authenticated, so as to be properly before this court.

Error from superior court, Bartow county; MILNER, Judge.

J. A. Baker, R. J. McCamy, and W. I. Heyward, for plaintiffs in error.

J. B. Conyers, for defendant in error.

SIMMONS J.

This was an action of ejectment, brought by W. H. Milner, Emma J. Mosley, John L. Milner, James L. Milner, E. B. Milner, T. P. Milner, Ernest Milner, and Kitty C. Stocks, heirs at law of James Milner, deceased, against A. G. B. Vandivere, for the recovery of a certain tract of land described in the declaration. By an amendment the names of Mrs. Mosley and Mrs. Stocks were stricken from the declaration. The defendant filed the plea of not guilty, and also the further plea that he had been in the actual and continuous adverse possession of the premises under written evidence of title for more than seven years before the commencement of the suit, and that the plaintiffs' right of action was barred by the statute of prescription. He also filed an equitable plea, setting up certain equities as a reason why the plaintiffs were not entitled to recover, which will be found in the report of the case. Both sides submitted evidence to the jury, which it is unnecessary to detail here. Under the charge of the court the jury returned a verdict for the defendant. The plaintiffs moved for a new trial on the several grounds set out therein, which was overruled by the court, and they excepted.

1. The following instructions of the court to the jury were complained of in the fourth and fifth grounds of the motion for a new trial: "(4) If you believe from the testimony that Mrs. Sue M. Milner, the mother of the plaintiffs, sold this land to the defendants, or either of them, and used the money received for the land in the support and maintenance of the plaintiffs, or any of them, then I charge you that the plaintiffs, or any of them, cannot recover, unless you find from the evidence that they tendered back to the defendants the amount of this purchase money, prior to bringing this action, or unless you should find that the rents and mesne profits arising from the property sued for would amount to the improvements placed on the premises by the defendants, or those under whom they held, and also enough over and above the improvements to pay back the original purchase money prior to the beginning of this suit. (5) The court charges you...