Wright v. Thompson

• Decision Date: 11 April 1940
• Docket Number: 13193.
• Citation: 8 S.E.2d 640,190 Ga. 173
• Parties: WRIGHT v. THOMPSON.
• Court: Georgia Supreme Court

8 S.E.2d 640

190 Ga. 173

WRIGHT v. THOMPSON.

No. 13193.

Supreme Court of Georgia

April 11, 1940

Syllabus by the Court.

1. A ground of a motion for a new trial assigning error upon the admission of documentary evidence, will not be considered unless the evidence objected to be set forth, either literally or in substance, in the motion itself, or attached thereto as an exhibit. A mere reference in the motion to another part of the record where the evidence may be found is not sufficient.

2. 'Trustees and other representatives with custody of papers have ample opportunities to discover defects in the title of property in their care, and are estopped from setting up title adverse to their trust.' Code, § 38-117. In the instant claim case, where one who had acted as administrator of an estate asserted title to the property of the estate by virtue of a deed from the decedent, and testified that he accepted appointment as her administrator in ignorance of his legal rights, in that he thought that his title had been killed because the deed was lost at the time a verdict against the claimant was authorized.

On October 29, 1936, Mrs. Florrie Bell Thompson obtained a judgment against Sam W. Wright as administrator of the estate of Mrs. Cora Hendrix, deceased. On February 3, 1937, an execution was issued and levied on described real estate as the property of the defendant in fi. fa. Sam W. Wright individually filed a claim to the land. The trial resulted in a verdict for the plaintiff in fi. fa. The case came to this court on exceptions to the overruling of the claimant's motion for a new trial.

The evidence was substantially as follows: On December 30, 1924, T. P. Hendrix conveyed the land involved in this case to his wife, Mrs. Cora Hendrix, by a warranty deed which recited a consideration of $2,000. On the same date Mrs. Cora Hendrix gave her husband her promissory note for $2,000, due January 1, 1926, the note reciting that it was given for the purchase money of the land described in the deed. T. P. Hendrix transferred the note to Mrs. Florrie Bell Thompson, the plaintiff in fi. fa., on January 20, 1928. Mrs Hendrix died on December 1, 1928, leaving T. P. Hendrix as her sole heir.

On February 14, 1929, Hendrix as such heir executed a deed to the land to secure a personal loan of $600 from W. W. Edge. On May 6, 1929, Hendrix was appointed administrator of the estate of his wife, which appears to have consisted entirely of the real estate involved in this case. On December 30 1930, he purported to convey the land to Sam W. Wright, the claimant, by a warranty deed duly recorded on the same date, which recited that a part of the consideration of the deed was the assumption by the grantee of the $600 debt due to Edge and debts of the estate of Mrs. Cora Hendrix, amounting to approximately $100. T. P. Hendrix died on February 3, 1931, without having fully administered the estate, and in May, 1931, the claimant was appointed administrator de bonis non. In 1932 Mrs. Florrie Bell Thompson as transferee filed suit against Sam W. Wright as administrator of the estate of Mrs. Cora Hendrix, on the $2,000 promisory note of Mrs. Hendrix which she gave her husband at the time she received the deed to the land in dispute. This suit resulted in the judgment which is the basis of the levy in the instant case.

The claimant introduced in evidence, as the basis of his claim of title, a deed to him from Mrs. Cora Hendrix, dated November 26, 1928, which recited a consideration of $585; also a promissory note from Mrs. Cora Hendrix to him, dated October 17, 1926, and due October 1, 1927, for $585, reciting that it was given for one half interest in eleven bales of cotton. The claimant testified that he was the nephew of Mrs. Cora Hendrix and T. P. Hendrix, and lived with them for eighteen or twenty years; that he worked for his aunt in 1926, and the note was for his share of the cotton raised on the place that year; and that this note was the consideration for the deed from Mrs. Hendrix. He and his brother in law, one of the witnesses to the deed, testified that the deed was delivered to him on the date on which it was executed. The claimant testified, that he did not have the deed recorded because he did not know that it should be recorded; that he took it home and put it in his trunk, and 'kept the deed for a good while' before giving it to his uncle T. P. Hendrix; that he asked his uncle about the deed several times, and was assured that the deed was all right; that he searched for the deed after the death of his uncle, but was unable to find it; that he did not find it until about two weeks before the filed the claim in the present case, when he and his sister happened to locate it while looking through some old papers of his uncle; that he asked Mr. Francis Hunter, the attorney who drew and witnessed the deed and whose death occurred before the trial, about his title when he found that his deed was lost, and was advised that his title had been killed by loss of the deed; that he did not mention the deed to any one else, because he believed that his title had been so killed; and that he had been in possession of the land and had worked it as his individual property from the time when he received the deed in 1928 until the present.

The plaintiff in fi. fa. introduced the records in a number of court proceedings, which may be briefly summarized as follows:

(1) A claim to the land in dispute filed by Mrs. Cora Hendrix on July 17, 1927, after the land had been levied on under an execution in favor of Travelers Indemnity Company and against T. P. Hendrix.

(2) Petition by Sam W. Wright to enjoin Robert R. Appel as executor of the estate of W. W. Edge from exercising the power of sale contained in the security deed from T. P. Hendrix, filed on September 24, 1935, and the answer thereto. The petition was sworn to by Sam W. Wright, and alleged that Mrs. Cora Hendrix died intestate seized of the property described, leaving T. P. Hendrix as her sole heir; and that Mrs. Hendrix died owing numerous debts, including a note to petitioner for $585, dated October 17, 1926, due October 1, 1927, and an open account to petitioner of $350, both of which were unpaid at the time the deed was executed and had not since been paid. The petition was dismissed by the petitioner on January 28, 1937.

(3) Petition by Robert R. Appel, executor of the estate of W. W. Edge, against Sam W. Wright, for judgment on notes of T. P. Hendrix, secured by deed to land in dispute, which the defendant had assumed. Suit resulted in judgment for the plaintiff on November 13, 1937. In his answer the defendant alleged that he had no interest in the land at the time he assumed the payment of the notes, about January 1, 1932, and that the assumption was therefore without consideration.

(4) Suit by Mrs. Florrie Bell Thompson against Sam W. Wright as administrator of the estate of Mrs. Cora Hendrix, for judgment on the $2,000 note from Mrs. Hendrix to T. P. Hendrix, filed July 5, 1932. The defendant in his answer contended that the note was void, because it represented a sale by the wife to the husband, which had not been approved by the judge of the superior court, and contended also that the transfer was void because it was without consideration. The first trial resulted in a verdict for the defendant. Judgment was affirmed by Court of Appeals, Thompson v. Wright, 51 Ga.App. 817, 181 S.E. 875, but was reversed by Supreme Court. See Thompson v. Wright, 182 Ga. 380, 185 S.E. 341. New trial resulted in verdict and judgment for plaintiff.

(5) Petition by Robert R. Appel, as executor, against Mrs. Florrie Bell Thompson, Sam W. Wright, as administrator of the estate of Mrs. Cora Hendrix, and others, to cancel the judgment of Mrs. Thompson against Sam W. Wright, administrator, and for other relief. This suit was dismissed by the plaintiff on September 21, 1937.

There was evidence that Sam W. Wright, as administrator, dismissed his answer to the suit of Mrs. Florrie Bell Thompson, and allowed judgment to be taken in pursuance of an agreement between the parties that his note against Mrs. Cora Hendrix for $585 should...