Murphy v. Peabody

• Decision Date: 30 September 1879
• Citation: 63 Ga. 522
• Parties: Murphy et al. v. Peabody et al.
• Court: Georgia Supreme Court

63 Ga. 522

Murphy et al. v. Peabody et al.

Supreme Court of the State of Georgia

(September Term, 1879.)

[Warner, Chief Justice, being engaged in presiding over the senate organized as a court of impeachment, did not sit in this case.]

Ejectment. Misnomer. Amendment. Trust. Deeds. Registration. Charge of Court. New trial. Before *Judge Crawford. Muscogee Superior, Court. November Adjourned Term, 1878.

Ejectment was brought on the demises of Joseph Jefferson, George H. Peabody and George Foster Peabody, against Mary E. and E. M. Murphy, tenants in possession, for two lots of land known as numbers two and three in a village near and above the city of Columbus, laid off by Seaborn Jones. The defendant, Mary E. Murphy, pleaded, in substance, as follows:

On the — day of——the title of the premises was in Jefferson. On that day he sold the same to Adela Arnold, who paid the purchase money therefor, went into possession, and so remained until her death, which occurred on the — day of——. At the time of the purchase she said to Jefferson that she wanted the place to go to a little son of George Peabody after her death, and the deed was so made, to-wit: to said Adela for life, with remainder to said son. Neither George Peabody, nor his son, was in any way related to said Adela, nor was she bound in any way to provide for either. After the death of said Adela, letters of administration upon her estate were granted to Russell, who, after obtaining the usual and proper order, and after having duly advertised the same, sold the property to defendant for—dollars, she being the highest and best bidder, and placed her in possession of the premises. where she has so remained ever since. She bought without notice, actual or constructive, of any deed to Peabody or to any one else. No such deed was ever recorded. She is a bona fide purchaser without notice, and Peabody is a mere volunteer, and therefore, in equity and good conscience, is not entitled to said land as against her. Wherefore she prays that plaintiff be enjoined from the further prosecution of said action against defendant for the recovery of said land.

Plaintiff subsequently amended the count on the demise of George Foster Peabody, by changing the name wherever it appeared to that of Charles J. Peabody.

*The jury found the premises in dispute in favor of Charles E. Peabody.

The facts, so far as material, are stated in the opinion.

Williams & Crawford; J. M. Russell, for plaintiffs in error.

Peabody & Brannon, for defendants.

Bleckley, Justice.

1. Whether a misnomer is amendable does not depend upon whether it is slight or gross. No case is too desperate to be healed; all misnomers in civil pleadings are amendable. Code, § 3483. Certainly, it is a wide miss to write George Foster when the draftsman means Charles J, but such a blunder is only a misnomer, and the remedy is easy and instantaneous. The rule of amendment is as broad as the doctrine of universal salvation.

2. Both parties claimed under Jefferson, and the question was, to whom had Jefferson conveyed? The deed was destroyed, and one theory of its contents was that it created in Adela Arnold an estate for life, with remainder to Peabody; and there was a question which Peabody, whether father or son. There was a demise from each. The court charged "that if there was a deed, and it gave the lot, after Adela Arnold's death, to either one of the Peabodys, they might recover." This was but a particular application of a well-known general rule, namely, that where the declaration in ejectment contains two demises, from different lessors, the plaintiff may recover by showing title in either lessor. Whoever understands the first principles of the action of ejectment will not need authority for so elementary a rule as the one to which the court adverted.

3. A thing certain in the case was, that Jefferson had received his purchase money and had made a deed. The deed, having been destroyed by fire, could not be produced. Whetherit was made to Peabody the father, or to Peabody *the son, was open to contest. So it was, as to whether the fund which paid for the land belonged to the formeror to Adela Arnold, or was some of it his, and some of it hers. It was also in dispute how the deed read; whether it declared a trust, or rested upon the doctrine of resulting trust, or whether it conveyed a clear estate to the grantee...