Roberts v. Groover

• Decision Date: 17 December 1925
• Docket Number: (No. 5039.)
• Citation: 131 S.E. 158,161 Ga. 414
• Parties: ROBERTS . v. GROOVER et al.
• Court: Georgia Supreme Court

161 Ga. 414

131 S.E. 158

ROBERTS .

v.GROOVER et al.

(No. 5039.)

Supreme Court of Georgia,

Dec. 17, 1925.

Rehearing Denied Jan. 16, 1926.

(Syllabus by the Court.)

Error from Superior Court, Brooks County; W. E. Thomas, Judge.

Action by W. W. Roberts, Jr., against Denmark Groover and others. Judgment for defendants, and plaintiff brings error. Affirmed.

Branch & Snow and John E. Morris, Jr., all of Quitman, and J. T. Norris, of Cartersville, for plaintiff in error.

Stanley S. Bennet and Sam T. Harrell, both of Quitman, for defendants in error.

HILL, J. This is the third appearance of this case in the Supreme Court. Roberts v. Strickland, 153 Ga. 529, 112 S. E. 560; Roberts v. Groover, 156 Ga. 386, 119 S. E. 696. When the case was first here this court affirmed the judgment of the lower court in refusing an interlocutory injunction. When the case was before this court the second time the judgment of the lower court was reversed for error in sustaining a demurrer to the petition. On the trial of the present case in the lower court a verdict was returned by the jury in favor of the defendants, Denmark Groover and B. R. Strickland. The plaintiff made a motion for new trial, which was overruled, and he excepted. The substance of the petition is set out in 156 Ga. 386, 119 S. E. 696, supra. The defendants filed an answer to the petition, in which they denied the material allegations thereof; and, answering specifically, the defendants averred that about March, 1920, they sold the property in controversy to the plaintiff, W. W. Roberts, Jr., at the sum of $40 per acre, and, in order to ascertain the definite number of acres in the tract of land, they employed Z. R. Hutchinson, county surveyor of Brooks county, to survey the premises, and he did, on August 14, 1919, make a complete and accurate survey of the premises, giving the courses, metes and bounds of the property, and when it was sold to the plaintiff the plat so made by Hutchinson was exhibited to the plaintiff and was referred to in the bond for title from the defendants to the plaintiff; and that a deed made by the defendants to the plaintiff, in accordance with the courses, metes, and bounds on the plat, contains a perfect description of the land to be conveyed. It is averred thatthe plaintiff and his father went over the lands at least three or four times, and plaintiff knew that there was some nut grass on the land and saw some, and made objections before the purchase of the land, and the defendants emphatically deny that they represented to the plaintiff or any one else that the place was free of nut grass, or that it had "a never-failing branch on it." It is also averred that no complaint about the property was ever made by the plaintiff to the defendants, or either of them, until June, 1921, at which time one of the plaintiff's notes was past due, and the reason advanced by the plaintiff for the failure to pay the note was the fact that he had unwisely held his cotton, and lost considerable money by so doing, and did not have the ready money to pay the note. Defendants aver that they did not practice any artifice or fraud upon the plaintiff nor do anything to prevent an examination or inspection of the premises, and plaintiff did inspect the same repeatedly before he purchased, etc.

1. The first assignment of error is on the refusal of the trial judge, at the conclusion of the evidence in the case, to direct a verdict for the plaintiff. This will not cause a reversal of the judgment. This court has in numerous decisions held that a trial judge may, within the restrictions prescribed by Civil Code 1910, § 5926,...