Parker v. Spurlin
| Decision Date | 07 January 1971 |
| Docket Number | No. 26170,26170 |
| Citation | 227 Ga. 183,179 S.E.2d 251 |
| Court | Georgia Supreme Court |
| Parties | Annie Hazel Spurlin PARKER v. Thomas E. SPURLIN. |
Syllabus by the Court
1. (a) Defendant filed a motion to set aside the judgment complained of during the same term in which that judgment was rendered. The pendency of this motion kept the term open and authorized the court to amend the judgment.
(b) The record shows that the interest which petitioner claims in the property passed to him and his mother on the death of his father. Nothing appearing in the record to indicate that petitioner's mother has divested herself of this interest, the decree should be amended to show what interest, if any, she still has in the property.
2. In order to raise the defenses of laches or the statute of limitation, such defenses must be raised by an affirmative plea or in the answer of the defendant.
3. Where facts are shown, other than the mere relation of parent and child, establishing between the parties a confidential relationship in which the child is the dominant party, a conveyance from the parent to the child is presumed to be tainted with undue influence.
Reinhardt, Ireland, Whitley & Sims, Bob Reinhardt, Tifton, Floyd H. Wardlow, Ashburn, for appellant.
Marion L. Bridges, David C. Jones, Clarence A. Miller, Sylvester, for appellee.
This appeal is from an order overruling a motion for a judgment notwithstanding the verdict, and the amended decree of July 31, 1970.
Thomas E. Spurlin, in his amended complaint, names Annie Hazel Spurlin Parker and the Cordele Sash, Door & Lumber Company as defendants. The complaint alleges in substance the following facts: Petitioner is the grandson, and defendant the daughter of the late T. A. Spurlin. In his last will and testament, Mr. Spurlin devised a tract of land in Worth County, which contained 490 acres to his widow, Josephine P. Spurlin, '* * * for and during the term of her natural life or during widowhood.' Item III of the will provided:
The complaint further alleges that at the time of the death of the testator, the remaindermen were the petitioner's father Earnest Spurlin, and the defendant, Annie Spurlin Parker. On the death of Earnest Spurlin, petitioner succeeded to all the rights of his father as remainderman. The defendant procured, from the life tenant of the property, a warranty deed to the 490 acre tract of land, and the consideration given for that deed was spurious and grossly insufficient. It was further alleged that the deed was obtained from the grantor as the result of undue influence practiced upon her when she was not possessed of her mental faculties. At the time of this transaction, a confidential relationship existed between the defendant and the grantor, her mother. At the time of the conveyance, the grantor was 80 years old and almost totally blind.
The complaint alleged finally that the defendant had granted a timber lease on such property to the other defendant, Cordele Sash, Door & Lumber Company (hereinafter referred to as Cordele), and that Cordele negotiated such lease with full knowledge of petitioner's claims and rights.
The prayers of the amended petition were: (a) That the court construe the last will and testament of T. A. Spurlin; (b) that a constructive trust be impressed upon the real and personal property in the hands of the defendant Parker to the extent of an undivided one-half interest; (c) that defendant Cordele be restrained from cutting and removing timber from the subject tract.
The defendants, in their answers denied the material allegations of this complaint.
On the trial of the case, the defendants moved for a directed verdict after the introduction of all the evidence. That motion was denied. The jury found for the plaintiff, and a decree was entered on this verdict November 22, 1970.
On November 27, 1968, a motion for a judgment notwithstanding the verdict was filed on behalf of the defendant, Parker. While this motion was pending, the court, on its own motion, entered an order amending the earlier decree on July 31, 1970. On August 5, 1970, the court dismissed the motion for a judgment notwithstanding the verdict.
Error is enumerated on: (a) the denial of the defendant's motion for a directed verdict; (b) the decree of November 22, 1968 which approved the verdict; (c) the order of July 31, 1970 which amended the earlier order; and (d) the overruling of the defendant's motion for a judgment notwithstanding the verdict.
1. (a) We consider first the contention that the court erred when, by its own motion, it set aside the decree of November 22, 1968, and substituted the amended decree of July 31, 1970. After the jury returned a general verdict in favor of the plaintiffs, the court entered a decree thereon. In that decree, it was ruled that the will of T. A. Spurlin gave his widow the right to sell the real estate involved here, or any portion thereof. It was then ruled that the conveyance of the fee by the life tenant to the defendant passed no title and the sale was declared null and void. Defendant Cordele was enjoined from removing any timber from the tract.
In its amended decree, the court held that, since the grantor (the life tenant) was not a party to the proceedings, a cancellation of the deed was not authorized. It was decreed, instead, that the plaintiff's remainder interest in the tract was unaffected by the deed from the life tenant to the defendant, and that, '* * * the undivided one-half remainder interest of plaintiff in said real property shall be held by Annie Hazel Spurlin Parker in trust in favor of plaintiff, Thomas E. Spurlin, without impairment or depletion, until the death of Josephine P. Spurlin at which time plaintiff's undivided one-half interest shall be delivered to said plaintiff.'
The amended decree is in accord with the pleadings of the plaintiff. The amended petition did not pray for a cancellation of...
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...a power of attorney creates a confidential relationship as a matter of law, with some states holding that it does, Parker v. Spurlin, 227 Ga. 183, 179 S.E.2d 251 (1971); In re Estate of Bankovich, 344 Pa.Super. 520, 496 A.2d 1227 (1985); Askew v. Askew, 619 S.W.2d 384 (Tenn.App.1981); and o......
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Barker v. Barker
...be supplied by an amendment, even after the term. See also Wilson v. Wilson, 109 Cal.App.2d 673, 241 P.2d 281 (1952); Parker v. Spurlin, 227 Ga. 183, 179 S.E.2d 251 (1971); Alvis Hotel, Inc. v. Alvis Hotel of Monroe, Inc., 244 La. 149, 149 So.2d 199 (1963), aff'd mem, 150 So.2d 769 (1963); ......
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Shields v. Shields, S94A0972
...v. Pittard, 232 Ga. 731, 208 S.E.2d 788 (1974); Pickett v. First National Bank, 223 Ga. 507, 156 S.E.2d 438 (1967); Parker v. Spurlin, 227 Ga. 183, 179 S.E.2d 251 (1971); Cousins v. Brackett, 220 Ga. 396, 139 S.E.2d 329 (1964); Williams v. Jones, 219 Ga. 45, 131 S.E.2d 553 (1963); Belt v. G......
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Fletcher v. Fletcher
...an issue of fact is raised as to undue influence. Tingle v. Harvill, 228 Ga. 332(5), 185 S.E.2d 539 (1971); Parker v. Spurlin, 227 Ga. 183(3), 179 S.E.2d 251 (1971). See Code Ann. § 37-710. The trial court properly overruled defendant's motion for a directed verdict as to Count 2 of the com......