Stallings v. Britt

• Decision Date: 07 September 1948
• Docket Number: 16317,16318.
• Citation: 49 S.E.2d 517,204 Ga. 250
• Parties: STALLINGS et al. v. BRITT. BRITT v. STALLINGS.
• Court: Georgia Supreme Court

49 S.E.2d 517

204 Ga. 250

STALLINGS et al. v. BRITT.

BRITT v. STALLINGS.

Nos. 16317, 16318.

Supreme Court of Georgia

September 7, 1948

Syllabus by the Court.

1. Where the opposing parties to a cause move the court to direct a verdict, though each moves that it be directed in his favor, and they agree that there is no issue of fact for the jury, and state that the court should direct a verdict for one side or the other, neither party can complain that the court erred in directing a verdict, though the losing party may except upon the ground that the verdict directed is erroneous.

2. Admissions contained in a stricken plea may be introduced in evidence by the opposite party. Such admissions when thus made are to be taken as true, because they are asserted by the party himself; and while the party may withdraw them formally from the pleadings, he can not by a mere withdrawal avoid the effect of the admissions since they may still be used as evidence against him. Cooley v. Abbey, 111 Ga. 439, 443, 36 S.E. 786.

(a) In the absence of a motion to rule out testimony previously admitted, a refusal to permit the filing of an affidavit of forgery relating to the admitted evidence is not erroneous. Such an affidavit simply states another reason why the court should not have admitted the evidence when it was offered.

3. The evidence authorized a verdict for the defendant, and where as here, the parties consent for the court, without the intervention of a jury, to determine all issues in the cause this court will not reverse the judge if there is any evidence to support his finding, no error of law appearing.

(a) Where the proof is that the party in possession claims title and holds possession under a deed to himself, the statutory rule that there can be no adverse possession against a cotenant until actual ouster, or exclusive possession after demand, or express notice of adverse possession, has no application, and this is true regardless of the relation in interest or privity which he may stand in to others where he has never expressly or impliedly recognized such relation. In such a case his possession is referable to the deed under which he holds.

Mrs Stallings and eight others--her brothers and sisters--brought a suit in two counts against Mrs. L. A. Britt as executrix of the estate of Larry B. Britt, deceased, to recover an undivided nine-twentieths interest in a described parcel of land located in Lamar County. By amendment the plaintiffs struck count two of their petition. Briefly, these are the allegations of count one: Plaintiffs are the children of Larry B. Britt, who died testate November 23, 1946, and of Mrs. L. B. Britt, who died intestate November 19, 1939. M. W Smith conveyed the parcel of land in controversy jointly and equally to plaintiffs' parents June 21, 1922, by a deed which was recorded June 26, 1922. Their mother, at the time of her death, owned her undivided half interest in the described land. There was no administration on her estate. Plaintiffs and their father were her sole heirs at law, and after her death owned her interest in the land as tenants in common. Their father married Mrs. Mattie L. A. Britt in 1942. At the December term, 1946, of the court of ordinary of Lamar County, the defendant, Mrs. Britt, qualified as executrix of their father's estate, took possession of the tract of land in question, and as such representative is now claiming the whole of it. They prayed for the recovery of their undivided interest therein.

Defendant filed a special plea in abatement to the petition, and in substance said: The will of Larry B. Britt bequeathed to defendant a life estate in the parcel of land in controversy with remainder over to his grandchildren. The remaindermen are necessary parties, and since they are not made such, there is a nonjoinder of parties defendant and the case should abate as the law provides.

The plea in abatement was demurred to upon these grounds: (1) The facts alleged in the plea affirmatively show that there is no cause, ground, or reason for the abatement of plaintiffs' action; and (2) the petition shows that defendant, as executrix of the estate of Larry B. Britt, deceased, is in possession of the property in controversy, and that as such executrix she represents all parties at interest under the will, including the remaindermen. The court sustained the demurrers and struck the plea in abatement. Exceptions pendente lite complaining of this ruling were timely filed by defendant.

In an amended answer to count one of the petition, defendant admitted that she qualified as executrix of the estate of her deceased husband; that she took exclusive possession of the land in question; and that in her representative capacity she is now claiming the whole of it. She further said that the testator's will devised to her a life estate in the whole of the tract, with remainder over to his grandchildren. She denied that plaintiffs have any interest in the property, but admitted that their mother, Mrs. L. B. Britt, at one time owned an undivided half interest in it, but alleged that by deed of gift, dated May 12, 1931, and recorded in Lamar County on December 23, 1931, she conveyed all of her interest therein to her husband, Larry B. Britt. She further alleged that her testator was in exclusive possession of the land at the time of his death on November 23, 1946, and had been exclusive, notorious and adverse possession of it since the death of his first wife on November 19, 1939, during which period he had paid the taxes and made repairs on the property. It was further alleged: That plaintiffs made no claim to any interest in the property during the life of their father, notwithstanding the fact that he was in possession of it under a recorded deed, and that if they ever had any cause of action for the relief sought, which was denied, the same had become, was at the time of filing the suit, and now is barred both by the statute of limitations and their laches.

Being dissatisfied with the verdict directed by the court, plaintiffs filed a motion for new trial on the usual general grounds, which they subsequently amended by adding other grounds. They excepted to a judgment overruling their amended motion.

In a cross-bill of exceptions, error is assigned on the exceptions pendente lite filed by defendant, which complained of a judgment sustaining the demurrers interposed by the plaintiffs to defendant's plea in abatement.

Beck, Goodrich & Beck, of Griffin, and Clifford Seay, of Barnesville, for plaintiffs in error.

Dobbs & Whitmire, of Barnesville, and Christopher & Futral, of Griffin, for defendant in error.

CANDLER, Justice (after stating the foregoing facts).

1. In the third ground of the amended motion it is insisted that the court erred in directing a verdict for the defendant. From the facts that we find in the record there is no merit in this contention. The bill of exceptions recites: 'At the conclusion of the evidence, the plaintiffs moved the court to direct a verdict in favor of the plaintiffs, and the defendant moved the court to direct a verdict in favor of the defendant, and both sides agreed that there was no issue of fact for the jury, and that the court should direct a verdict for one side or the other.' In these circumstances neither party can complain that the court erred in directing a verdict, though the losing party may except upon the ground that the verdict directed is erroneous. Mims v. Johnson, 8 Ga.App. 850(1), 70 S.E. 139; Sovereign Camp W. O. W., v. Beard, 26 Ga.App. 130, 105 S.E. 629; Groover v. Savannah Bank & Trust Co., 60 Ga.App. 357, 3 S.E.2d 745; Lydia Pinkham Medicine Co. v. Gibbs, 108 Ga. 138, 33 S.E. 945; Yablon v. Metropolitan Ins. Co., 200 Ga. 693, 38 S.E.2d 534.

2. Amended grounds one and two of the motion for new trial complain as to the admission of certain testimony and the subsequent refusal to permit plaintiffs to file an affidavit of forgery. To count two of the original verified petition, which plaintiffs afterwards struck by amendment, there is attached, and made a part thereof, copy of a deed from Mrs. L. B. Britt to Larry B. Britt, dated May 12, 1931, recorded December 23, 1931, and conveying to grantee for a vaulable consideration her undivided half interest in the land here in controversy; and among the allegations of the stricken count are these:

'13. Your petitioners further show that said defendant claims title through and by virtue of a certain alleged deed, purportedly executed by the plaintiffs' intestate, Mrs. L. B. Britt, on May 12, 1931, to the defendant's testate, L. B. Britt, and conveying the half interest of Mrs. L. B. Britt in the property herein described to L. B. Britt. A copy of said deed is hereto attached, marked Exhibit A.

'14. Petitioners show that the grantor and grantee in said deed * * * were husband and wife, and said alleged deed was a contract of sale by a wife of her separate estate to her husband, and the same was invalid and void, because it was not allowed by order of the superior court of Lamar County, the county of her domicile.

'15. Your petitioners, as heirs at law of Mrs. L. B. Britt, hereby tender to the defendant the $5.00 consideration of said deed. This is a continuous tender, which plaintiffs are ready and able to execute at any time.'

Defendant tendered as evidence the three above quoted paragraphs of the stricken count, together with the copy deed attached thereto as an exhibit. The court allowed the same in evidence, over an objection then made that the proffered evidence was irrelevant and immaterial because there was no admission in the pleadings that the 'alleged' deed was in fact...