Norton v. Brown
| Decision Date | 20 July 1931 |
| Docket Number | 8266. |
| Citation | 159 S.E. 702,173 Ga. 146 |
| Parties | NORTON et al. v. BROWN. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Refusal to recommit case for auditor's failure to pass on demurrer to answer held not ground for reversal where final decree ruled on demurrer; refusal to recommit case for auditor's failure to rule on amendment to answer held not ground for reversal, where passed on in final decree; refusal to recommit case for auditor's failure to rule on evidence held not ground for reversal, where auditor's decision was upheld, regardless of such evidence.
The final decree of the court in this case should not be reversed because the judge refused to recommit the case to the auditor upon the grounds set up in the motion of the plaintiffs for that purpose.
Heir sued by other heirs for land held competent to testify to transactions with common ancestor tending to defeat recovery (Civ. Code 1926, § 5858, subd. 1, and § 5859).
Where heirs at law file suit against another heir at law of their common ancestor, to recover premises to which they claim title as tenants in common with the heir sued, the latter is not an incompetent witness to testify in his own behalf as to transactions and communications between him and the common ancestor, proof of which would tend to defeat recovery by the heirs suing.
Defendant amending answer to meet special demurrer waived right to except to rulings sustaining special demurrer.
Where plaintiffs filed a demurrer to the answer of the defendant upon general and special grounds, and the court sustained the special grounds thereof, with leave to the defendant so to amend as to meet the defects pointed out by these special grounds, to which ruling the defendant excepted pendente lite, and where the defendant filed an amendment to his answer, to cure the defects pointed out by these special grounds of demurrer, he cannot assign error upon such exception pendente lite, and insist that the court erred in sustaining the special grounds of the demurrer. When he undertook by amendment to meet the defects in his answer pointed out by the special grounds of the demurrer, he waived the right to except to the ruling that his answer was open to the attack made on it in these special grounds.
Other assignments of error are without merit.
Error from Superior Court, Gordon County; C. C. Pittman, Judge.
Action by E. M. Norton and others against W. E. Brown. Judgment for defendant, and plaintiffs bring error.
Affirmed.
Heir sued by other heirs for land held competent to testify to transactions with common ancestor tending to defeat recovery. Civ.Code 1926, § 5858, subd. 1, and § 5859.
Mrs Elizabeth M. Norton, Walter Murphey, Bill D. Murphey, James H. Murphey, Joe B. Murphey, and Carrie Bell Murphey brought their action to recover from W. E. Brown a one-third undivided interest in a described house and lot, and in the rents and profits thereof. They based their claim of title upon the ground that Betty Brown died intestate, seized and possessed of said property; and that she left as her heirs at law the defendant, who was her son, Odessa Chastain, who was her daughter, and petitioners, who were children of a deceased daughter. On May 4, 1929, the defendant filed his answer to the petition. He denied that petitioners were entitled to an interest in this property and the rents; and alleged as follows: E. W. Brown, his father, died seized and possessed of the premises in dispute in the year 1899 leaving as his sole heirs at law his widow, W. E. Brown (the defendant), Odessa Chastain, and the mother of petitioners being his children by Betty Brown, and Charlie and Sally Brown, his children by a former marriage. After the death of E. W. Brown, there was an oral partition of his property among his heirs at law. Under this partition his widow and the defendant received the house and lot in dispute and a lot adjacent thereto as their shares in his estate. The mother of plaintiffs went into possession of her share, and Odessa Chastain went into possession of her share, the same being lots cut off from the home place of the intestate. It was mutually agreed by the widow, Odessa Chastain, and the mother of the plaintiffs, that the share and interest of the widow would go to and belong to the defendant for his care and support of her. He and his mother entered into an agreement by which he should pay the taxes on the property going to her under this partition, look after the rents, contribute to her support, and that her interest in said property should vest in him in fee simple at her death. Pursuant to this agreement, as well as from filial affection, he contributed to his mother's support for and during her life, paid all taxes on the property, had water and lights put in the house, made valuable repairs thereon, such as building and extending the kitchen, porch, covering and painting the house, paying paving assessments, and keeping the property in repair during all these years.
On August 3, 1929, the plaintiffs amended their petition by alleging that the defendant had been appointed administrator of the estate of Betty Brown; that he was still acting as such, and that it was necessary and proper to make the administrator a party to this proceeding in order that they might enforce their rights in the premises; that defendant as administrator is in possession of this house and lot; that he has collected the rents therefrom since the death of his mother; that he is due them their part of said rents; and that the position of the defendant as administrator of the estate of his mother and his position as claimant of said house and lot are antagonistic. This amendment was allowed; and by rule nisi the administrator was required to show cause why he should not be made a party defendant. The amendment and the rule nisi were served on him, but it does not appear that any formal order was passed making him a party as administrator. On August 3, 1929, plaintiffs demurred to the answer, on the grounds that it failed to set forth sufficient facts to show that they were not entitled to recover; that paragraph 9 of the answer was irrelevant and insufficient to authorize the defendant to receive any relief; that it was too vague and indefinite; that it set forth conclusions without alleging the facts upon which the same were based; and that (a) it was not alleged whether the contract or agreement with Betty Brown was oral or written, and, if written, no copy was attached, and, if not written, it was insufficient, and all reference to it should be stricken; (b) the date of said contract is not alleged, nor its terms stated, nor who were the parties thereto; (c) it should be alleged what improvements were made by the defendant, when made, the cost thereof, and the amount of rent received from the property; and (d) it should be alleged what defendant contributed to the support of his mother, the amounts and dates thereof, amounts of taxes he paid, and any and all other amounts paid out by him under said contract for any purpose, giving the dates, amounts, and purposes of the expenditures, and to whom paid. The judge, on August 14, 1929, sustained the special grounds (a), (b), (c), and (d), and required the defendant to amend his answer within ten days to meet the defects so pointed out, and ordered that upon failure to do so his answer would stand dismissed. To this judgment the defendant excepted pendente lite. The defendant assigns in this court error upon these exceptions. On the same day an amendment of the answer was allowed and filed. In this amendment defendant alleged that the mother of the plaintiffs and Odessa Chastain went into possession of their respective shares in the estate of their father, under and by virtue of a parol partition, leaving the land in dispute in possession of the defendant and his mother.
On March 14, 1903, defendant purchased the undivided interest of Charlie and Sally Brown in the estate of their father, and took their deed thereto, thus giving to him a three-fourths undivided interest in the estate of his father, which was left after the lots given to the mother of the plaintiffs and Mrs. Chastain had been carved out. The house on the land in dispute at that time was a three-room cottage, in bad repair and untenantable. In 1905 he bought the property where he now resides. He and his mother decided to improve the old house but she had no money and no home other than with him. She agreed with him that she would move into his home and live with him, and that he should care for, support, and maintain her, and that in consideration thereof she would give him her portion of her husband's estate. This arrangement was understood by, and was agreeable to, the mother of plaintiffs and Mrs. Chastain. In pursuance of this agreement, and acting thereon, the mother moved into his home, lived with him for a number of years, and he supported her by paying every expense, giving her all the money she wanted and needed up toher death. Acting upon this agreement, in 1905 defendant sold and conveyed to one Deason a lot carved from the tract embracing premises in dispute, for $500. About 1907 or 1908 he remodeled the old home, converting it into a comfortable five-room cottage, at a cost of four or five hundred dollars. In 1915 he furnished the house with water bath, sink, and toilet, at a cost of about $75. In 1919 he put in electric lights and fixtures, at a cost of $50. In 1918 he added a kitchen, at a cost of $150. He made repairs to the barn, fences, and in the upkeep of the premises. He kept the house insured, at a cost of about $25 a year, from 1918 to the date of his mother's death. He paid all expenses of every character incident to the upkeep of the property, and complied with his agreement as...
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