Smith v. Smith
| Decision Date | 12 August 1909 |
| Citation | 65 S.E. 414,133 Ga. 170 |
| Parties | SMITH. v. SMITH. |
| Court | Georgia Supreme Court |
A ground of a motion for a new trial, which merely stated that evidence of a named witness was ruled out, by which the plaintiff "sought to show" certain things, set out no practical question for decision by this court. What an attorney or party "sought to show" by a witness is not synonymous with what the witness testified, or would have testified, or even was expected to testify.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 1747; Dec. Dig. § 302.*]
A ground of a motion for a new trial, which only states that the court erred in "ruling" a certain thing, without showing whether the "ruling" was made in connection with the admission or rejection.of certain specified evidence, or in the charge, or how it was made, presents no sufficient ground for decision by this court.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1744-1752; Dea. Dig. § 302.*]
A ground of a motion for new trial because of the admission of certain evidence should show what objection was made to it.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 1747; Dec. Dig. § 302.*]
An application for partition alleged that a certain person was tenant in common with the applicant of lands devised by a will creating an estate for life, with remainder over, and was in possession thereof. The respondent filed objections, in which he asserted that he was in possession of the land as executor of the testator, and not as an individual, that as such executor he was entitled to possession of the estate until it should be fully administered, and that the applicant could not have partition against him as an individual devisee. He also filed equitable pleadings, not withdrawing his objection, but setting up that he had expended considerable sums in placing valuable improvements on the property and fertilizing the land, and that on a fair and equitable division he would have an interest of the value of $2,700, as against an interest on the part of the applicant of the value of $250, or in that ratio, and praying that the land be divided so as to give him that part of the land on which his improvements were located. By amendment he alleged that there had been an agreed division, followed by possession and the making of valuable improvements on the part which it was agreed he should have. He claimed that a writ of partition should not issue, because partition had already been made, but, if it were issued, that the partitioners should be directed to define the boundaries according to the agreement. On the trial the applicant introduced evidence, and the respondent followed with rebutting evidence. Held, that it was error to hold that the respondent was entitled to the opening and conclusion of the argument. Massengale v. Pounds, 100 Ga. 770, 2S S. E. 510; Dorough v. Johnson, 108 Ga. 812, 34 S. E. 168; Du Bignon v. Wright, 122 Ga. 263, 50 S. E. 65.
[Ed. Note.—For other cases, see Trial, Cent. Dig. § 57; Dec. Dig. § 25.*]
Partition of land by agreement is such a contract as must be in writing, under the statute of frauds.
LEd. Note.—For other cases, see Frauds, Statute of, Cent. Dig. § 109; Dec. Dig. § 6S.*]
If two tenants in common made a parol partition of lands, and each takes exclusive actual possession thereunder of the part assigned to him, and one or both substantially improve the parts so assigned respectively, the partition will be consummated so as to be binding on them.
[Ed. Note.—For other cases, see Partition, Cent. Dig. § 13; Dec. Dig. § 5.*]
A life tenant of land has the right of possession, and remaindermen have no right to enter and take possession during the continuance of the life estate, under a parol agreement of partition, so as to consummate it, unless by consent of the life tenant, waiving or releasing his right of possession in favor of the remaindermen.
[Ed. Note.—For other cases, see Life Estatef, Cent. Dig. § 29; Dec. Dig. § 7.*]
Improvements made upon land by a life tenant, as a general rule, pass to the remaindermen, and they cannot be required to make compensation therefor.
[Ed. Note.—For other cases, see Life Estates, Cent. Dig. § 38; Dec. Dig. § 17.*]
If a life tenant, acting for himself or through another, with his own means or the proceeds of the life estate, which belonged to him, improved the property, upon the termination of the life estate such improvements would inure to the common, benefit of the remaindermen, in the absence of any agreement to the contrary.
(a) This is true, although the person acting for the life tenant, and employing the money or property of the latter or proceeds of the estate belonging to the life tenant to make the improvements, may have been one of the remaindermen living on the place with the life tenant.
[Ed. Note.—For other cases, see Life Estates Cent. Dig. § 38; Dec. Dig. § 17.*]
If two persons are tenants in common of a tract of farming land, and one of them has made permanent improvements on a portion thereof bona fide for the purpose of improving the property, and not of embarrassing his co-tenant, or incumbering the estate, or hindering partition, when partition is sought between himself andhis co-tenant, a court having equitable jurisdiction may take into consideration the improvements so made, in dividing the land, and may assign to the tenant who made the improvements that portion of the property on which they are situated, the division being made on the basis of the unimproved value, if the nature of the property and the improvements, and the situation of the latter, are such as to render it practicable, and it can be done without injury or injustice to his co-tenant.
[Ed. Note.—For other cases, see Partition, Cent. Dig. § 244; Dec. Dig. § 85.*]
It is not a bar to the application of this rule, in equitable partition, that the improvements may have been made by one of the remaindermen in fee simple during the continuance of the life estate, provided they were made by him as remainderman from his own funds or property, and not merely on behalf of the life tenant, or as a representative of the life tenant, by using the funds or property of the latter, or simply for the beneficial use of the life estate, which he was enjoying with the life tenant.
[Ed. Note.—For other cases, see Partition, Cent. Dig. § 244; Dec. Dig. § 85.*]
(Syllabus by the Court.)
Error from Superior Court, Douglas County; Price Edwards, Judge.
Partition by Reuben Smith against S. W. Smith. Judgment for defendant, and plaintiff brings error. Reversed.
W. A. James, for plaintiff in error.
Roberts & Hutcheson and J. H. McLarty, for defendant in error.
LUMPKIN, J. Reuben H. Smith made application to have certain farming land, comprising about 70 acres, partitioned between himself and his brother, alleging that they were remaindermen in fee simple under the will of their father, after a life estate devised to their mother, who had died before the application was made. The defendant filed objections to the application, and also filed equitable pleadings, by which he claimed that a parol partition had been made between himself and his brother during the continuation of the life estate, and that this had been followed by possession and the making of improvements by him. There was no evidence of any consummation of the partition in severalty or improvements after the death of the life tenant. Under the evidence and the charge of the court the jury found In favor of the defendant for that portion of the land claimed by him. A motion for a new trial was made and overruled, and the plaintiff excepted.
An agreed partition of land is such a contract as is required to be in writing, under the statute of frauds. A mere parol partition, without more, will not suffice. In some states it is held that a parol partition, though consummated by possession under it, and acquiescence in such possession, will not vest the legal title in severalty, unless the possession be continued for a sufficient length of time to raise the bar of the statute of limitations, or confer title by prescription. In equity the rule is generally recognized that a parol partition, followed by exclusive possession in severalty, and the exercise of ownership of the parties respectively for a considerable length of time, with the acquiescence of all concerned, will give an...
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