Nail v. Nail

• Decision Date: 12 July 1950
• Docket Number: No. 17151,17151
• Citation: 207 Ga. 171,60 S.E.2d 749
• Parties: NAIL et al. v. NAIL et al.
• Court: Georgia Supreme Court

Page 749

60 S.E.2d 749

207 Ga. 171

NAIL et al. v. NAIL et al.

No. 17151.

Supreme Court of Georgia.

July 12, 1950.

Syllabus by the Court.

1. In order for this court to be empowered to pass upon an assignment of error, where there has been a verdict and no motion for new trial, as in this case, the antecedent ruling complained of, under the terms of the Code, § 6-804, must have been one which necessarily controlled the verdict, judgment, or decree.

2. The verdict and final judgment in the instant case were not necessarily controlled by the order refusing to allow two proffered amendments to the petition. The amendments were offered for the purpose of alleging the source of the plaintiffs' title to the land in controversy, and the pleaded facts were insufficient to show title, either legal or equitable.

Bennett, Pedrick & Bennett, E. Kontz Bennett, Larry E. Pedrick, all of Waycross, for plaintiff in error.

J. H. Highsmith, M. C. Grainger, Baxley, E. Way Highsmith, Brunswick, for defendant in error.

CANDLER, Justice.

Maria L. Nail, a resident of Appling County, died during November, 1932, intestate. She was survived by her husband, J. W. Nail, eight children, and several grandchildren, the children of a deceased daughter. J. W. Nail died, intestate, February 29, 1948, and a resident of Appling County at the time of his death. On April 3, 1948, Don C. Nail and several others, alleging themselves to be some of the children and grandchildren of J. W. Nail and Maria L. Nail, filed a suit in the Superior Court of Appling County against John A. Nail, Hovis C. Nail, H. Ford Nail, Mrs. Suveda Swyner, and Colleen Whitten, a minor, as the other children and grandchildren of J. W. Nail and Maria L. Nail. John A. Nail, as temporary administrator of the estate of J. W. Nail, was made a party defendant after the allowance of an amendment alleging that he was in such capacity a necessary party. Briefly, as thus amended, their petition alleged: Maria L. Nail, at the time of her death in 1932, owned two tracts of land in Appling County, Georgia, one of which tracts contained 459 acres, more or less; the other, 98 acres, more or less, and title to them passed upon her death to her heirs at law, namely, her husband, J. W. Nail, and the parties to this proceeding, J. W. Nail taking an undivided one-tenth interest, which afterwards upon his death intestate passed to the petitioners and defendants. J. W. Nail was allowed to live on the land and have the rents and profits from it after the death of Maria L. Nail until his death in 1948. During his life, and on June 7, 1946, J. W. Nail leased to two of his sons, John A. Nail and Hovis C. Nail, for a term of ten years, computed from January 1, 1946, the 459-acre tract of the Maria L. Nail lands. The lease authorized them to cultivate all of the tract suitable for farming, and to operate the timbered part of it for turpentine, pulpwood, and sawmill purposes. During his life they were required by the lease contract to pay him stipulated amounts for the rights granted, and it further provided that in case of his death before the expiration of the lease, they were to pay his funeral expenses and the taxes annually on the leased property. The petition further alleged that the lease was, for several reasons, null and void and therefore should be cancelled.

General and special demurrers were interposed to the petition, and, subject thereto, the defendants jointly answered. The court sustained the first four grounds of the demurrer and overruled the remaining grounds. To that portion of the judgment on the demurrer which was adverse to the petitioners, they excepted pendente lite.

The petitioners then offered a second amendment to their petition, in which it was in substance alleged: Maria L. Nail acquired title to tract number two--the 98-acre tract as described in the petition--from R. R. Wells by deed dated November 12, 1925, and recorded in Appling County on the same day. J. W. Nail purchased tract number one--the 459-acre tract described in the petition--from S. A. Crosby by warranty deed, dated September 21, 1897. J. W. Nail became financially involved in 1923, his cousin Oscar Nail paid items of indebtedness for him, amounting to the aggregate sum of $2526; and as an inducement and consideration for the loan, it was agreed between J. W. Nail and Oscar Nail that thereafter the equity in J. W. Nail's 459-acre tract and the beneficial ownership of it should be the property of Maria L. Nail, subject only to Oscar Nail's loan deed for the amount advanced to J. W. Nail for the purpose of paying his indebtedness. In consequence of the agreement between J. W. Nail and Oscar Nail, an implied trust arose in favor of Maria L. Nail, though no deed for the land in question was ever actually made to her, and thereafter J. W. Nail held the legal title for said tract of land in trust for her. The amendment then alleges a series of facts occurring after the agreement between J. W. Nail and Oscar Nail, which the petitioners contend estop the defendants from disputing the title of Maria L. Nail for said tract of land. The petitioners also offered a third amendment to their petition, alleging further facts in support of their contention that the defendants are estopped to dispute the title of Maria L. Nail for the 459 acre tract involved.

Voluminous objections were interposed to the allowance of the two proffered amendments. However, they are in substance these: (1) The amendments offered show that J. W. Nail's title for tract number one, the 459-acre tract, did not pass to Maria L. Nail, the agreement between J. W. Nail and Oscar Nail, as relied upon, being insufficient in law to pass either legal or equitable title for the land in question to her; and (2) estoppel can not be the basis of title to land, since estoppels are defensive rather than creative. The objections were sustained, the proffered amendments disallowed, and the petitioners excepted pendente lite.

When the case was called for trial, counsel for the petitioners made this announcement: 'Your Honor, the plaintiffs in this case are not in a position to proceed with the trial of this case, because the court on March 11, 1950, disallowed plaintiffs' amendments numbers 2 and 3, which amendments alleged the facts upon which the plaintiffs base their action; and the disallowance of these amendments makes it impossible for the plaintiffs to present to the court and jury the issues upon which the plaintiffs' action is based. Plaintiffs are not now asking for a continuance, because the orders of the court disallowing their proposed amendments have entered into and affected the further progress and final result of the case, and it is impossible for the plaintiffs to make out the case which they contend they are entitled to present, because of the action of the court in disallowing the proposed amendments to plaintiffs' petition.' The petitioners then declined to offer testimony in support of their cause. The defendants introduced in evidence a warranty deed from S. A. Crosby to J. W. Nail, dated September 21, 1897, conveying to him the 459-acre tract described in the petition; also the lease contract of June 7, 1946, from J. W. Nail to John A. and Hovis C. Nail. And on motion therefor, the court then directed a verdict for the defendants and entered a final judgment in the case decreeing: (1) that a fee simple title to the 459-acre tract described in the petition belonged to J. W. Nail at the time of his death; and (2) that the lease contract from J. W. Nail to John A. And Hovis C. Nail of June 7, 1946, was a good and valid lease, and that the lessees were entitled to the possession of the property embraced therein and to the enjoyment of all of the rights and privileges granted by it.

No motion for a new trial was made; but in a direct bill of exceptions to this court error was assigned on the judgment sustaining grounds 5, 6, 7, 8, and 9 of the defendants' demurrer to the petition; the judgment disallowing amendments 2 and 3 as offered to the petition; and on the verdict and...