Tanner v. Hinson

• Decision Date: 14 June 1917
• Docket Number: (No. 496.)
• Citation: 92 S.E. 1005,147 Ga. 176
• Parties: TANNER. v. HINSON.
• Court: Georgia Supreme Court

(147 Ga. 176)

92 S.E. 1005

TANNER.

v.HINSON.

(No. 496.)

Supreme Court of Georgia.

June 14, 1917.

Rehearing Denied July 12, 1917.

(Syllabus by the Court.)

Error from Superior Court, Jeff Davis County; J. P. Highsmith, Judge.

Suit by Mary Jane Hinson against Elias Hinson, her husband, and B. H. Tanner, with cross-action by defendant Tanner. Judgment for plaintiff, defendant Tanner's motion for a new trial overruled, and he excepts. Reversed.

Mrs. Mary Jane Hinson filed a petition against her husband, Elias Hinson, and B. H. Tanner, alleging that Hinson had the legal title to two lots of land, numbered 161 and 249, respectively; that she had paid the purchase price of the lots to Jasper Hand, the vendor, in 1872, with money inherited from her father's estate, and it was agreed between her and her husband, Elias Hinson, that she should pay for the land and that they would move and live upon it, "and that the land should belong to the plaintiff"; that after paying for the land they did move upon it under the agreement that it was to be hers, and remained there until four or five yearsbefore the bringing of this action, when they moved upon another tract of land, and plaintiff rented the first described land, and has kept a tenant In possession since; that the legal title to the land was made to Elias Hinson, the husband, but by reason of the above facts a trust had arisen in the plaintiff's favor; and that her husband had sold the land to Tanner, who took with notice of her equity. She prayed that the title to the land be decreed to be in her; that Tanner be required to deliver up the deed from Hinson, and that it be canceled; that Tanner be enjoined from setting up any claim to the land; and that Hinson be required to execute title to her. Hinson did not file an answer. Tanner denied, in effect, all the material allegations of the petition, and specially averred that Hinson was the legal owner in possession of the land at the time of his (Tanner's) purchase, and that he bought In good faith for full value, without any notice of plaintiff's alleged equity In the premises in controversy. He prayed that the title be decreed to be in him, and that a writ of possession be issued against the plaintiff in his favor, and that he recover the value of the land for rent. The jury returned a verdict for the plaintiff "as regards lot number one hundred and sixty-one (161)." No reference was made to lot No. 249. A motion for new trial was made by Tanner which was overruled,...