Moore v. Mcafee, (No. 2096.)

• Decision Date: 04 March 1921
• Docket Number: (No. 2096.)
• Citation: 106 S.E. 274,151 Ga. 270
• Parties: MOORE et al. v. McAFEE.
• Court: Georgia Supreme Court

151 Ga. 270

106 S.E. 274

MOORE et al.

v.McAFEE.

(No. 2096.)

Supreme Court of Georgia.

March 4, 1921.

(Syllabus by the Court.)

Error from Superior Court, Crawford County; H. A. Mathews, Judge.

Ejectment by A. J. McAfee, executor, against L. D. Moore, administrator, and others. Judgment for plaintiff, and defendants bring error. Affirmed.

McAfee, executor of Colbert, brought ejectment to recover the south half of lot 30 in the Sixth district of Crawford county. The parties defendant were J. B. Spiller, Mrs. Nancy Newberry, executrix of M. J. Newberry, and L. D. Moore, administrator of the estate of Mrs. Emma M. Ray, deceased. When the case was called for trial and both parties announced ready, counsel for the plaintiff offered an amendment reciting that B. H. Ray was sole heir at law of Emma M. Ray; that he was claiming the land in dispute as sole heir, was actually defending the suit, and was a proper party defendant; that he claimed possession and right of possession of the land; and it was prayed that he be made a party and be required to set up a defense in this suit. This was signed by the plaintiff's counsel, and the court indorsed upon the amendment, "Amendment allowed, October 21, 1919, " and then signed the same officially. After the evidence was closed by both parties, by agreement of counsel, upon suggestion of the judge, Mrs. Nancy Newberry, as executrix, etc., filed a disclaimer; and she as such executrix was then considered as eliminated from the case. J. B. Spiller filed a disclaimer at the same time. B. H. Ray also, through his attorney, filed a disclaimer, but was treated as a party defendant by the court and by the plaintiff. The jury returned a verdict finding for the plaintiff the premises in dispute, a verdict quando against the estate of Mrs. Emma M. Ray for mesne profits, and a verdict for mesne profits against B. H. Ray individually. Moore, administrator of Mrs. Ray, and B. H. Ray, individually, made a motion for new trial, which was overruled, and the movants excepted.

L. D. Moore, of Macon, for plaintiffs in error.

R. D. Feagin, of Macon, for defendant in error.

BECK, P. J. (after stating the facts as above). [1] 1. Or.e ground of the motion for a new trial assigns error upon the granting by the court of an order making B. H. Ray a party defendant upon the trial of the case, Without his consent and over the objection of the administrator of Mrs. Ray and without notice or rule nisi to B. H. Ray. Objection to such an order should have been made the subject of direct exception; error upon the same cannot be properly assigned in a motion for new trial.

4. Error is assigned upon the ruling of the court in admitting in evidence an order appearing upon the minutes of Crawford superior court at September term, 1876, and which contains the recital that it was made in the case of Smith, Administrator of Culverhouse, v. Moore, being a bill to marshal assets; and the further recital that it appeared to the court from the bill that the only asset of the estate remaining was the land described in the bill, which recital was followed by an order of the court that the administrator sell the land at public outcry, after due advertisement, and bring the money into court for distribution. This order was objected to upon the ground that it did not describe the land in controversy nor describe any land, and did not furnish authority to the administrator to sell any land, unless it was accompanied by the bill of the administrator in which the land was described. The court did not err in admitting this evidence over the objection made. There is a presumption that the administrator acted upon the order in connection with the bill, and that the bill sufficiently described the land.

6. Exception is taken to the ruling of the court in permitting the plaintiff as a witness in the case to testify as follows:

"There was a general tradition in the neighborhood as to there being a Grant Mill Place and as to what the Grant Mill Place consisted of. It was in the southeastern part of this county in the Sixth district. Deep creek runs through part of it. Toteover runs between 30 and 35. I got this information to start with from maps, but mainly from Wiley Patterson. He gave me general information of the land and Frank Mathews and Billie Mathews gave me the location and told mo where the line was, and Mr. Becham and Mr. Nichols. Mr. Becham is dead; so is Nichols. Billie Mathews is dead. These were old settlers in that community. Billie Mathews lived on the west of lot 35, adjoining, I think, on the lot adjoining 35."

This testimony was objected to upon the grounds that a tradition cannot be proved in that way; that the evidence did not show a tradition as to the boundaries of the Grant Mill Place, did not specify any particular boundary or evidence of any boundary of any particular tract of land. The court refused to rule out any evidence, upon motion of movants, when the plaintiff closed his evidence. In...