Walker v. Neil

• Decision Date: 27 June 1903
• Citation: 45 S.E. 387,117 Ga. 733
• Parties: WALKER et al. v. NEIL.
• Court: Georgia Supreme Court

45 S.E. 387

117 Ga. 733

WALKER et al. v. NEIL.

Supreme Court of Georgia

June 27, 1903

Syllabus by the Court.

1. Any point of practice which, if sound, would be fatal to a motion for a new trial, should be presented to the trial court by a motion to dismiss the application for a new trial, and, if not so presented, will be considered as having been waived.

2. Where an order required the brief of evidence in a motion for a new trial to be filed in the clerk's office within 10 days after the motion was heard and determined, and the judgment overruling the motion was rendered on the 1st day of August, 1902, and the brief was filed in the clerk's office on the 11th day of that month, the filing of the brief was within the time limitation prescribed by the order.

3. In a suit against an executor for the specific performance of a parol gift of land, alleged to have been made by his testator, the plaintiff is not incompetent to testify to admissible facts which occurred after the death of the alleged donor.

4. Where, in such a case, the evidence shows that the plaintiff was in possession of the property in controversy at the time of the testator's death, and has since continued in possession thereof, and the executor claims that such possession has always been purely permissive, evidence as to improvements made by the plaintiff upon the property since the death of the alleged donor is admissible for the purpose of rebutting such claim of the executor.

5. "Where money due on a mortgage is paid by one whose duty it is, by contract or otherwise, to pay the mortgage, it is a release, though in form it purports to be an assignment."

6. Where a father, for the purpose of making a gift to his daughter, purchased land upon which there were certain incumbrances securing debts of the vendor, and expressly agreed with the vendor to assume and pay these debts as a part of the purchase money, and, after the land was conveyed to him, made an unconditional parol gift of the same to his daughter, and placed her in possession thereof, she relatively to him or his estate, upon becoming entitled to a specific performance of his parol promise, took the land freed from the incumbrances.

7. Where the parol gift became, in equity, complete during the father's lifetime, and after his death the daughter remained in possession of the land and paid the taxes thereon, and the executor of the father's will also paid the taxes under the belief that the property belonged to the estate, such executor acquired no right to have the land when decreed to be the property of the daughter, subjected to the repayment to him of the amount so expended by him for taxes.

8. If however, the executor used funds of the estate in repairing and improving the property at the request of the donee, or with her consent, he was entitled, when the donee brought an action against him for specific performance, to set this fact up, and to have the land, when decreed to be the property of the donee, subjected to the repayment of the money so expended by him.

9. Improvements made for a donee by another person upon the land embraced in a parol gift, pending the donee's possession and upon the faith of the gift, stand upon the same footing as if they were made by the donee.

10. Residence by a husband and wife upon land which the wife claims, and in which the husband claims no interest, is notice of whatever interest the wife has therein.

Error from Superior Court, Houston County; W. H. Felton, Jr., Judge.

Suit by Z. H. Neil against C. E. Walker and others. Decree for plaintiff, and defendants bring error, and plaintiff assigns cross-error. Judgment on main bill of exceptions reversed. Cross-bill of exceptions dismissed.

L. L. Brown and Bacon, Miller & Brunson, for plaintiffs in error.

John P. Ross, for defendant in error.

FISH J.

Mrs Neil brought an equitable petition against W. H. Harris, as executor of the last will of H. C. Harris, and Mrs. C. E. Walker. So much of the allegations of the petition as we deem it necessary to set forth made the following case: The plaintiff was in the possession of a certain described dwelling house and lot in the town of Ft. Valley. Her father, H. C. Harris, had given her this property, and put her in actual possession thereof, since which time she has been in the open, notorious, continuous, exclusive, and adverse possession of the same under claim of title, occupying the dwelling house as a residence. Her father gave her this land, and placed her in possession thereof, in consideration of the love and affection which he had for her, and upon consideration and in pursuance of an agreement between him and Sterling Neil, the father of her husband. Shortly after the plaintiff's marriage, her father, H. C. Harris, and her husband's father, Sterling Neil, jointly gave to her husband a certain tract of land in the town of Ft. Valley, known as the "Foundry Property," and soon thereafter her father agreed with Sterling Neil that he would give to the plaintiff the dwelling house and lot in controversy for a home if Neil would pay the entire purchase price of the foundry property, which they had jointly given to the plaintiff's husband, whereupon Sterling Neil paid to her father one-half of the purchase price of the foundry property (about $1,700), and her father, pursuant to the agreement, and because of his love and affection for her, gave her the property in controversy, and placed her in possession of the same. Although the plaintiff's father frequently declared it to be his purpose to make and deliver to her a deed to the premises in dispute so soon as he finished paying the purchase price thereof by paying a mortgage lien created thereon by his grantor, he died without having executed to her such deed. Upon the faith of her father's gift of the property to her, the plaintiff, while in possession of the same, and with his full knowledge and approval, made certain described valuable improvements thereon. The defendant W. H. Harris, as executor of the last will of H. C. Harris, in August, 1901--more than seven years after he became executor--executed a deed to said premises to the defendant Mrs. C. E. Walker. Mrs. Walker was not an innocent purchaser of the land without notice, for at the time the deed was executed to her by such executor the plaintiff was in open and notorious possession of the same, claiming it as her own, and her possession was notice to Mrs. Walker of her claim of title and the character of her title. The deed to Mrs. Walker was executed to her in consideration of a debt due to her by the estate of H. C. Harris. The defendants are threatening to interfere with the plaintiff's possession and enjoyment of the property, and are demanding that she pay rent for the same, claiming that it belongs to Mrs. Walker. The deed from the executor to Mrs. Walker is a cloud upon the plaintiff's title. Mrs. Walker has instituted a proceeding against the plaintiff's husband to evict him, as a tenant holding over, from the house and lot in question. The plaintiff prays that the defendants be enjoined from interfering with her full and free enjoyment and possession of the property; that the executor be required to execute a deed conveying the title to her, and the title be decreed to be in her as against the executor and the estate of his testator; and that Mrs. Walker be required to surrender the deed made to her by the executor, and such deed be declared to be null and void; and for general relief. Mrs. Walker answered that she was advised that the plaintiff's husband was in possession of the property in controversy, and did not know whether the plaintiff had ever been in possession of the same or not; that she knew nothing as to the allegations of fact upon which the plaintiff based her claim of title to the land; that the statement that she (Mrs. Walker) was not an innocent purchaser was not true, as she never had the slightest notice that the plaintiff, or any other person than W. H. Harris as executor, made any claim whatever to the property, and she bought it in the utmost good faith, without any suspicion of, or cause to suspect, any adverse claim of title thereto, and paid for it the sum of $1,800; and that, upon the plaintiff's husband refusing to pay her rent, she had had a warrant issued to evict him as her tenant. The executor, in his answer, denied that the plaintiff had any title to or interest in the land, either by gift or otherwise, and alleged that, while she and her husband were in possession of the premises in dispute, such possession was, and always had been, purely permissive--permissive by the testator during his lifetime and afterwards by the executor, until he sold the property to Mrs. Walker. He alleged that the testator made all necessary repairs on the property, and paid for them, before the plaintiff was put in possession, and that respondent, knowing that the property belonged to the testator's estate, at the plaintiff's request made the repairs that were necessary after the death of the testator, expending therefor the sum of $349.79. He admitted that the plaintiff and her husband made certain minor improvements on the place, but alleged that they were not necessary, and merely added to the convenience of the occupants, and that they could well afford to do this, as during all the time that they had occupied the premises they had paid no rent. He alleged that, acting under the powers conferred upon him by the will, he had sold the place, at its fair market value, to Mrs. Walker, and that she was entitled to its possession. By amendment to his answer the executor alleged that when the testator purchased the property it was incumbered with two mortgages; that after the testator's death the respondent had paid...