Smith v. Smith
| Decision Date | 19 November 1898 |
| Citation | 31 S.E. 762,106 Ga. 303 |
| Parties | SMITH et al. v. SMITH. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. To justify the admission of secondary evidence as to the contents of a lost deed, it must be shown, not only that such a deed once existed, but also that it was properly executed.
2. Under the evidence in the present case there were questions which should have been determined by a jury, and it was therefore error to direct a verdict.
Error from superior court, Muscogee county; W. B. Butt, Judge.
Action by Sophronia Smith against Solomon Smith and others. Judgment for plaintiff. Defendants bring error. Reversed.
Blandford & Grimes, for plaintiffs in error.
Brannon Hatcher & Martin, for defendant in error.
Sophronia Smith, as the widow of William Smith, applied to the ordinary for a year's support, which was set apart to her in a city lot described as lot No. 7 of a designated survey "being the lot upon which William Smith died." No objection was filed by any one to the return of the appraisers, and it was recorded as required by law. After this, three other Smiths, alleging that they were the children and heirs at law of William Smith, and were in possession of the lot, entered what purported to be an appeal to the superior court. Sophronia Smith then brought her petition, praying for the appointment of a receiver to take charge of the property; alleging that there was no administration on the estate of William Smith, and no necessity for any, and that upon his death the three other Smiths took possession of the property, and refused to permit plaintiff to enter thereon; that they were insolvent; and that their only reason for entering an appeal from the judgment of the ordinary was to delay plaintiff in obtaining possession and enjoyment of her year's support. In their answer the defendants alleged that they were in possession under a title derived through a gift from their deceased father more than seven years before his death. A receiver was appointed to take charge of the property pending the litigation. To the order appointing the receiver the defendants excepted, and a decision was rendered by this court declaring that the trial judge did not abuse his discretion in appointing the receiver. Smith v Smith, 96 Ga. 772, 22 S.E. 332. When the case came on for a final hearing, it appeared that the defendants had voluntarily dismissed their appeal from the judgment of the court of ordinary; and the plaintiff moved for a decree that the receiver turn over to her the house and lot, and accrued rentals, less the costs of that proceeding, as her year's support under the judgment of the ordinary, and that the petition abate and be dismissed. The court granted the decree moved for. The defendants excepted, and again brought the case to this court, and it was held that the decree rendered must be set aside. Smith v. Smith, 101 Ga. 296, 28 S.E. 665. Thereafter the case came on for a final hearing in the court below. The plaintiff introduced in evidence the petition to the ordinary for a year's support, and the order setting it apart to her in the lot designated in the return of the appraisers. Plaintiff testified that William Smith had resided on the lot in dispute for 20 years, and that none of the defendants except Antoinette Smith, an unmarried daughter, had lived on the place before his death. There was also evidence for plaintiff showing that William Smith for several years immediately preceding his death had returned the property for taxation in his own name, and evidence tending to show that he had paid all taxes due on the same up to the time of his death. Joseph Moore, a witness for plaintiff, testified that he owned the south half of the lot named in the return of the appraisers, and that he had seen William Smith on two or three occasions pay Mrs. Anna Maria Harris different sums of money for the place on which he died, but witness did not know whether it was Smith's money, or that furnished by his children, and did not know whether Mrs. Harris had ever made a deed thereto either to Smith or his children; that the place on which Smith died is under one inclosure, and includes all of lot No. 6 of the survey above referred to, and the north half of lot No. 7; that witness sold the north half of lot No. 7 to Nancy Smith, the first wife of William Smith, and mother of defendants, and made her a deed to it; and that William Smith claimed the place on which he lived and died up to the time of his death. The plaintiff disclaimed in open court any claim under the year's support set apart to her to the north half of lot No. 7, which was conveyed by Joseph Moore to Nancy Smith. The evidence for the defendants was, in substance, as follows: Squire Smith, one of the defendants, testified that the place in dispute is all under one inclosure, and includes lot No. 6 and the north half of lot No. 7; that lot No. 6 was bought by his father for defendants at their instance; that their money paid for it, and a deed was made to them. The deed was made by Mrs. Anna Maria Harris and her husband, Daniel Harris, and was witnessed by two or three witnesses. Witness did not remember their names, but thought one of them was named Chapman or Chapple, or some such name. He had seen the deed, which was in the possession of his father...
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