Mueeer v. Rhuman

• Citation: 62 Ga. 332
• Parties: MueeER et al. v. Rhuman.
• Decision Date: 28 February 1879
• Court: Supreme Court of Georgia

62 Ga. 332

MueeER et al. v. Rhuman.

Supreme Court of the State of Georgia

(February Term, 1879.)

* Evidence. Res adjudicata. Equity. Estates. Before Judge Hillyer. Fulton Superior Court. April Term, 1878.

Mrs. Anna Rhuman filed her bill against Muller, Breiten-bucher and others, to recover certain realty in the city of Atlanta. She claimed as being next of kin to Peter Oelrich, deceased, under a deed made by Peter Huge, dated Feb. 10, 1871, by which he conveyed the premises to "Catherine Oelrich during her natural life, and at her death to such child or children as she may have by her present husband, Peter Oelrich, and if she should die leaving no child or children by her present husband surviving her, then the title to vest in her said husband, Peter Oelrich, and if the said Peter Oelrich should die before his said wife, and the said Catherine should die leaving no child or children surviving her, then the title to vest in the next of kin of said Peter Oelrich." Oelrich died first; Mrs. Oelrich afterwards. They left no children. Complainant is his sister.

*Defendants set up that Huge's deed was made by mistake, and was intended to convey a fee simple title to the premises to Mrs. Oelrich; that being Germans, not familiar with the English language, they did not discover the mistake for some time; that after Huge's death, Oelrich and wife filed a bill against the administrator of his estate and the two sisters (one having since died) of Oelrich to reform the deed, and a decree was had for that purpose, which renders the matter res adjudicata. The answers pray that if it is not already decided, it may now be so decreed. [Huge's administrator was not a party to this bill.] Defendants are the heirs of Mrs. Oelrich and a purchaser under them (Breitenbucher), and claim under her.

The jury found for complainant. Defendants moved for a new trial on the following, among other grounds:

1. Because the court rejected, when offered in evidence to support the plea in bar, the record of the former suit of Oelrich and wife v. Huge's administrator. The bill had no subpoena attached to it; there was a order to serve non-resident parties by publication, and notice was published; there was no regular service of bill and subpoena on anybody, and the administrator came into court only by voluntary answer. There were other irregularities which it is unnecessary to mention.

2. Because the court held Breitenbucher an incompetent witness to prove that he was present at the trade which resulted in the making of the Huge deed; that it was agreed that fee simple titles to Mrs. Oelrich should be made, and that drawing the deed otherwise was a mistake. Breitenbucher was one of the defendants who held by purchase from the others. The purchase was subsequent to Huge's death.

3. Because the court rejected the evidence of witnesses Woolf, Bass and others to show a mistake in the terms of the deed.

4. Because the court rejected the evidence of witness Bass that Huge, after the making and delivery of the deed to *Oelrich and wife, said he had made a mistake in its terms, and promised to correct it by making a new deed to Mrs. Oelrich in fee simple.

5. Because the court admitted the evidence of witnesses Rhuman and Finger that Oelrich and wife, while in possession of the land, stated that after the death of Mrs. Oelrich, it would go to Mrs. Rhuman.

6. Because the finding was too large by half, it appearing that complainant had a sister. [A witness, George Rhuman, testified, without objection, that he was the son of complainant; that she and her sister were the nearest of kin to Oelrich; that his mother wrote to him from Europe that her sister died, and that she died without children.]

7. Because the court charged the jury that they must believe from the evidence, beyond a reasonable doubt, that the alleged mistake was committed before they would be authorized to find that such mistake was made in the execution of the deed.

8. Because the verdict was contrary to law and the evidence. The motion was overruled, and defendants excepted.

M. A. Bell; Gartrell & Wright; N. J. Hammond, for plaintiffs in error, cited (on the points decided) as follows: Res adjudicata, Code, sees. 4185, 2897; 1 Kelly, 410; 3 Ib., 23; 32. Ga., 190. Breitenbucher competent, Code, sec. 3854; 38 Ga., 106; 39 Ib., 479; 44 Ib., 73; 45 Ib., 25, 147, 416; 60 Ib.. 498, 582. Evidence as to conversations, Code, sees. 3771. 2657, 3773. Error in charge, Code, secs. 3117, 3749; 7 Ga.. 467.

T. P. Westmoreland; Collier & Collier, for defendant, cited as foliows: Evidence of res adjudicata, Code, secs. 4183, 4185; 4Ga., 571; 12 Ib., 77; 19 Ib., 501; 11 Ib., 328, 431. Breiten-bucher incompetent, Code, sec. 3854; 58 Ga., 288, 494; 59 lb., 180, and cases cited. Charge right, Code, sec. 3117; 11 Ga., 159; 29 Ib., 166; 40 Ib., 11; Code, sec. 3124; 12 Ga., 118.

*WARNER, Chief Justice.

This was a bill filed by the complainant against the defendants to obtain the possession of certain real estate in the city of Atlanta therein described, upon the allegations contained in said bill. On the trial of the...