Tanner v. Hinson

• Decision Date: 14 June 1917
• Docket Number: 496.
• Citation: 92 S.E. 1005,147 Ga. 176
• Parties: TANNER v. HINSON.
• Court: Georgia Supreme Court

92 S.E. 1005

147 Ga. 176

TANNER v. HINSON.

No. 496.

Supreme Court of Georgia

June 14, 1917

Rehearing Denied July 12, 1917.

Syllabus by the Court.

The plaintiff alleged in her petition facts relied on to show equitable title in herself to two tracts of land, and that the defendant had become a purchaser of both tracts from her husband, with notice of her equity, whereupon she prayed that the deed from her husband to the defendant be canceled as a cloud upon her title, and that she be decreed to be the owner of the land, and the defendant be enjoined from taking possession. Evidence was introduced tending to support the plaintiff's theory of the case. The defendant by his plea denied the allegations and resisted the prayers of the petition; and by way of cross-action he alleged that the plaintiff had remained in possession in spite of the demand of the defendant for the possession, and that the lands were worth a stated amount for rent; and, among other things, he prayed to be allowed to recover possession from the plaintiff, together with a money verdict for the value of the rents, issues, and profits. While instructing the jury the court said: "If, gentlemen of the jury, in this case you should find in favor of the plaintiff, the form of your verdict would be, 'We, the jury find in favor of the plaintiff.' If you find in favor of the defendant, the form of your verdict would be, 'We, the jury, find in favor of the defendant.' " This charge eliminated from the consideration of the jury the plaintiff's cross-demand for the writ of dispossession in favor of the defendant against the plaintiff for the lot which was not mentioned in the verdict, but under no circumstances would it authorize a decree for any specific amount for mesne profits to which the defendant was entitled, under his pleadings and evidence, relatively to the lot not mentioned in the verdict which was a matter that the jury should determine. Under this view, the error should not be regarded as harmless.

The defendant offered in evidence the tax digests of Jeff Davis county for the years 1906 to 1913, inclusive, for the purpose of showing that Elias Hinson returned during each of those years, in his own name, lot of land No. 161 in the First district of Jeff Davis county, and that Mary Jane Hinson, the plaintiff, did not return during any of the years named the lots Nos. 161 and 249, and for the further purpose of showing that the...