Smith v. Jones

• Decision Date: 13 November 1937
• Docket Number: 11938,11954.
• Citation: 194 S.E. 556,185 Ga. 236
• Parties: SMITH v. JONES. JONES v. SMITH.
• Court: Georgia Supreme Court

194 S.E. 556

185 Ga. 236

SMITH v. JONES.

JONES v. SMITH.

Nos. 11938, 11954.

Supreme Court of Georgia

November 13, 1937

Rehearing Denied Dec. 9, 1937.

Error from Superior Court, Fulton County; E. D. Thomas, Judge.

Suit by Mrs. C. R. Jones against James Newton Smith. To review an adverse judgment, the defendant brings error, and the plaintiff files a cross-bill of exceptions.

Judgment affirmed on the main bill of exceptions and cross-bill dismissed.

RUSSELL C.J., dissenting.

Syllabus by the Court.

1. The conduct of the defendant and his counsel at the time amounted to a waiver of the irregularity in the manner of the reception of the verdict.

2. The judge, in stating to the jury contentions of the parties said: 'The plaintiff denies this contention, and says that she, having no credit, by arrangement with her mother bought the lumber in her mother's name, but that the daughter paid for the same by arrangement, and, as I say with her mother, and that the daughter paid for the erection of the house, carpenters, et cetera.' The defendant contends that this instruction was misleading, confusing, and did not fairly set forth the contentions of the parties, and particularly that by the use of the words 'as I say' the court expressed an opinion as to the facts proven. Held, that this excerpt from the charge is not open to the criticism.

3. Nor is there merit in the ground which complains that the court instructed the jury, in effect, that if, after a prescriptive title had ripened in the plaintiff, knowledge by her that her mother (under whom the defendant claimed) was executing to a bank a loan deed to the property, and also knowledge on her part of a deed from her mother to the defendant, would not operate as an estoppel against the plaintiff.

4. The evidence was sufficient to authorize the verdict.

On July 31, 1935, Mrs. C. R. Jones filed a petition against James Newton Smith, in which the plaintiff alleged that she was the owner of a described lot of land fronting 25 feet on Bradley (formerly Highland) avenue in the city of Atlanta, together with the house thereon; that about the year 1900 her mother Mrs. M. J. Smith, gave this lot to the plaintiff in consideration of plaintiff and her husband building a home thereon; that about that year the plaintiff and her husband built a house on the lot, and since that time they have been living in the house as their home and as their own property, have paid all taxes on the same, and have had actual adverse possession of the house and lot for more than twenty years; that, while her mother gave her the lot, she did not make any written conveyance to the plaintiff; that the defendant is claiming ownership of this house and lot under some pretended deed made to him by Mrs. M. J. Smith, his grandmother; that he is telling people that the property is his; that he is demanding that the plaintiff vacate the premises, and is endeavoring to procure a loan on the property and to sell it; and that he is insolvent and not able to respond in damages. She prays that he be enjoined from encumbering or selling the property, and from otherwise interfering with her possession; and that title to the property be decreed on her.

The defendant answered, denying that the plaintiff or her husband built the house on the lot in question, and averring that the house was built by Mrs. M. J. Smith, who purchased the lumber therefor, and paid for the labor done in building the house. The defendant denied that the plaintiff had ever paid the taxes, and alleged that Mrs. M. J. Smith owned the property from the year 1892 until January, 1919, and that during all this time she paid the taxes on it; that on January 13, 1919, Mrs. M. J. Smith conveyed the property by warranty deed to the defendant, since which time he has paid all the taxes; that Mrs. Smith permitted the plaintiff and her husband to live on the property until she conveyed it to the defendant; and that since that time the defendant has permitted them to live there without paying any rent, he only requiring that they pay the water bill. He set forth in his answer an alleged copy of a letter written to him May 27, 1931, and signed by the plaintiff, in which the plaintiff asked him 'to make a will to me and Bob [her husband] for the house we live in, as long as we live, to be turned back to you at our deaths.' This letter (which was introduced in evidence by the defendant) contained the further statement: 'Taking into consideration what I have done for the place since it was made over to me, surely you will do this out of respect to me, as I know your father would certainly throw me out of doors in case anything happened to you.' The defendant claimed that this letter showed conclusively that he and not the plaintiff owned the property. He denied that he was trying to place a loan on the property. By amendment he set forth a description of the property conveyed to him by Mrs. M. J. Smith, which describes property fronting 75 feet on Highland (now Bradley) avenue, being the property on which Mrs. Smith resided, and also the house and lot where the plaintiff lives. The defendant alleged that, while the consideration stated in the deed was love and affection, there was at that time a mortgage on this property for $750; that he told his grandmother he would assume the payment of this debt; that the did pay off this mortgage; and that under the law of Georgia permissive possession of property can never be the basis of a prescriptive title. He demurred generally on the ground that the petition did not set forth a cause of action, and showed no equity in the plaintiff. This demurrer was overruled, and the defendant excepted.

On the trial the plaintiff testified as follows: 'I live at 839 Bradley Avenue, N. W., Atlanta. I have been living right there in that house thirty-five years, unmolested in any way. I built the house. I was working in town at the tailor shop and I built the house and paid for it. * * * I have never paid rent to any one, and I have claimed ownership of this property all this time. These improvements cost me around a thousand dollars, or maybe a little more. * * * At the time I built this house, my mother had 75 feet of land along there in a row. That was in 1901. I paid for the house out of my money from my work. I was making $27.50 a week, sewing with my fingers, making men's clothes at Jerry Lynch's tailor shop. The material to build the house was bought at Randall Brothers lumber yard on Marietta Street. My mother bought the lumber from Randall Brothers, and gave notes for it, but I paid them. * * * The lumber to build that house was bought in my mother's name, and that deed must have been put up to secure the payment. * * * My mother borrowed $750 on this property in April, 1917, and I helped her to negotiate that loan. She did not give me any part of the money. The name, 'Mrs. C. R. Jones,' on the 1917 deed is my signature.' (The plaintiff attested this paper a witness.) 'As to whether I went with her to negotiate that loan, I had to go with my mother everywhere she went, because she could not read. I know where she was going and what she was going to do. As to whether I knew that my mother, on April 25, 1917, was borrowing $750 on this property that she had given me, I didn't know it was concerning the property that I was on, for I did not read the deed. I have never read them only when you put them in my face. * * * I did not know that the loan covered that property. As to whether I negotiated the loan, I did; and now I would like to explain to the jury why this money was borrowed.' Omitting her explanation, she continued: 'So I went with Mother, but I did not know at the time that the property was all combined together, because they did not read the deed to me, and I did not read them. I signed that deed to Mother's home, not mine, the one I was living in.' The plaintiff was testifying as to the deed to Hibernia Savings Building & Loan Association for the loan. 'With reference to the deed you show me, dated January 13, 1919, from Mrs. M. H. Smith to James N. Smith, I took my mother to the court-house at the time that deed was made, my Mother has been practically an invalid all of my life. As to whether I talked to Mr. Kinney [one of the attesting witnesses], I don't know Mr. Kinney. As to whether I knew what my mother went into the clerk's office for, I...