Tanner v. Hinson , 155 Ga. 838 ( 1923 )

Hines, J.

(After stating the foregoing facts.)

B. H. Tanner, one of the original defendants, died. On Aug. 30, 1921, the plaintiff filed her petition in the cause, setting up this fact, and the fact that Eli Tanner and E. L. Tanner had been appointed, and had duly qualified, as the administrators of said defendant. She prayed the court to grant a rule nisi calling upon the administrators to show cause why they should not be made parties defendant in lieu of their deceased intestate. In answer to said rule the administrators set up that letters of administration on the estate of the intestate had been granted to them on March 8, 1921, and that twelve months had not expired since then, for which reason the proceeding to make them parties was premature, as they could not be made parties to this action until after the expiration of twelve months. The court overruled their objection to being made parties at that time; and error is assigned upon this ruling.

There are two methods by which the executor or administrator of a dead defendant can be made a party in his stead. One is by scire facias, which can only issue after the expiration of twelve months from the probate of the will, or the grant of letters of administration. Civil Code (1910), § 5599. The other is by a rule nisi. §§ 5601, 5602. In Ham v. Robinson, 146 Ga. 442 (91 S. E. 483), this court said: “Inasmuch as the statute (Civil Code, § 4015) exempts an administrator or executor (Civil Code, § 3892) from suit for twelve months after his qualification, and the procedure to make parties by scire facias permits the plaintiff to proceed after the expiration of twelve months from the probate of the will or the granting of letters of administration, it would seem that if the course authorized by sections 5601 and 5602 be pursued, the motion should be made after the twelve months has expired.” In that case the action against the decedent was on debt; and the above ruling must be considered and construed in view of the nature of the action involved in that case. As the action in that case was on debt, and as the administrator had an exemption of twelve months from such suit, if it had originally been brought against him, and an exemption of the same period from a proceeding by scire facias to make him a party to such suit, originally brought against his intestate, this court properly held that in such an action the administrator had a like exemption from a proceeding by rule to make him a party in the place of his intestate. But the exemption of twelve months applies only to “a suit to recover a debt due by the decedent.” Civil Code (1910), § 4015. Accordingly, this court has held that this, exemption did not exist where a suit was brought against the administrator to cancel a deed made by his intestate (Lanfair v. Thompson, 112 Ga. 487, 37 S. E. 717), nor where an equitable action was brought against an administrator for specific performance of a contract for the sale of land, made by his intestate. Redford v. Lloyd, 147 Ga. 145 (93 S. E. 296). If an original suit for cancellation, or one for specific performance, can be brought against an administrator within twelve months from his appointment, we see no reason why he can not be made a party to such suit, originally brought against his intestate, within the twelve months. So the court did not err in making the administrators parties defendant to this case, in the place of their intestate, within twelve months from the grant of administration.

Exception is taken by movants to this charge: “ It so happens in this case, gentlemen, that the court has copy of a charge heretofore delivered; and, upon looking over it, it seems to present the issues made in the ease; and the court will utilize this and therefore read the charge to you instead of delivering it to you in the customary way. I apprehend that it will be quite as intelligible to you and as well understood by you.” Error is assigned on this instruction: (a) because this was the second trial of this case in which a verdict was rendered for the plaintiff, and this charge contained an instruction .which tended to lead the jury to believe that it was proper that the same verdict should again he rendered; and (&) because said charge stated to the jury that it was a copy of a charge heretofore delivered, from which the jury .must have known, by the manner in which the court expressed himself, that it was the same charge delivered on the first trial of this case, and the jury must have known that the verdict on the former trial was in favor of the plaintiff, and such charge must have been construed by the jury as an opinion by the court in favor of the plaintiff against the defendants, to their harm and prejudice. The exception to this instruction, for the above reasons, is without merit.

Movants allege that the court erred in giving to the jury this instruction: “ The burden is upon the plaintiff, Mrs. Hinson, to clearly show to you to your reasonable satisfaction, by evidence clearly, certainly, and definitely establishing the facts as she contends them to be with respect to the alleged parol agreement between herself and her husband for the alleged purchase and acquirement by her of the title to the lands in question; it is necessary for the proof to clearly establish such an agreement as that sought to be set up, to your reasonable satisfaction by the evidence-in the case.” The errors alleged are, (a) that this charge does not state the true rule of law, nor the strength and weight of evidence necessary to authorize specific performance of a parol contract for land; and (b) the court should have instructed the jury “that in order for the plaintiff to recover it was incumbent upon her to establish the parol contract and agreement so clearly and satisfactorily as to leave no reasonable doubt in the minds of the jury as to the contract and the terms thereof.”

What is the quantum of proof necessary to decree the specific performance of a parol contract for the purchase of land? In dealing with this question in a case for the reformation of a written instrument, this court said: “Lord Thurlow, in Shelbourne vs. Inchiquin (1 Bro. Ch. 349), said ‘that the evidence must be strong and irrefragable.’ But this language has been considered too strong. Attorney-General vs. Sitwell (1 Yonge & Coll. 583). And that all that was necessary was that the mistake should be made out by evidence clear of all reasonable doubts. Some of ■the authorities say that the mistake itself should be plain; and that it should be clearly made out by proofs which are satisfactory.” Wyche v. Greene, 11 Ga. 159, 171.

In Printup v. Mitchell, 17 Ga. 558 (16) (63 Am. D. 258), it was held that “ a parol contract for land, like the reformation of a deed by parol proof, should be made out so clearly, strongly, and satisfactorily as to leave no reasonable doubt as to the agreement.” This ruling was followed in Beall v. Clark, 71 Ga. 818. In Becker v. Donalson, 138 Ga. 634 (75 S. E. 1122), this ruling was approved, this court holding that “such instruction was certainly as strong as defendants were entitled to.” In Tidwell v. Garrick, 149 Ga. 290 (99 S. E. 872), the above rule was followed. In Newberry v. McCook, 146 Ga. 679 (92 S. E. 67), this court said: “ The evidence of mutual mistake which will justify the reformation of a deed to land must be clear, unequivocal, and decisive as to the mistake.” In Adkins v. Flagg, 147 Ga. 136 (93 S. E. 92), the action being one for the specific performance of a parol gift of land, this court approved an instruction that “to entitle [the plaintiff] to a verdict of specific performance, you must be satisfied beyond a reasonable doubt from the evidence that there was a gift of a specific tract of land, and a delivery of that land, as set out in the petition.” In Shropshire v. Brown, 45 Ga. 175, it was said: “ To entitle a complainant to a decree for specific performance of a parol contract for the sale of land, the contract must first be established with reasonable certainty.” In Schnell v. Toomer, 56 Ga. 168, Judge Bleckley, in refering to the rulings in Wyche v. Greene, and Printup v. Mitchell, supra, and in another case, said that what was meant by proof beyond a reasonable doubt in such cases was such proof as “ would satisfy the minds of the jury of the truth of the plea.” He further suggested that as “‘reasonable doubt’ is a phrase more appropriate to criminal eases, its employment to instruct the jury in civil cases had best be avoided.” In Harper v. Kellar, 110 Ga. 420 (35 S. E. 667), this court referred approvingly to the ruling in Shropshire v. Brown, supra, as follows: “ ‘ To entitle a complainant to a decree for a specific performance of a parol contract for the sale of land, the contract must first be established with reasonable certainty.’” In Warren v. Gay, 123 Ga. 243 (51 S. E. 302), this court approved this instruction: “that in order to establish a parol contract for the sale of land that would be a basis of recovery, . . the evidence must be so clear and unequivocal as to satisfy your minds to a reasonable certainty that such a contract was madeand said “ It has been held that an instruction to the jury that they must be satisfied to'a ‘moral and reasonable certainty ’ is the same in effect as saying that they must be satisfied beyond a reasonable doubt. See Bone v. State, 102 Ga. 387.”

In the charge complained of the court instructed the jury that “the burden is upon the plaintiff, Mrs. Hinson, to clearly show to you to your reasonable satisfaction, by evidence clearly, certainly, and definitely establishing the facts . . with respect to the alleged parol agreement,” and “ it is necessary for the proof to clearly establish such an agreement as that sought to be set up to your reasonable satisfaction.” This instruction comes clearly within the rulings in Shropshire v. Brown and in Warren v. Gay, supra. In fact the phrase, “ to your reasonable satisfaction by evidence clearly, certainly, and definitely establishing the facts . . with respect to the alleged parol agreement,” is almost, if not quite, the equivalent of the phrase, “beyond a reasonable doubt.” Speaking for himself, the writer agrees with the suggestion .of Judge Bleckley, that as the phrase, “reasonable doubt,” is one used in instructions in criminal cases, it would be best to omit it in civil cases. We do not think that the instruction complained of was erroneous.

Movants allege that the court erred in charging the jury as follows:. “ Where it is contended that there is a parol agreement between husband and wife for the purchase by the wife from the husband of lands, it is necessary for the evidence produced to you to clearly establish, to your reasonable satisfaction, that there was in fact such an agreement and to such an extent that there is no reasonable doubt on your mind relative thereto.” This instruction is alleged, to be erroneous for the same reasons as those urged against the charge set out in the foregoing division of this opinion. We do not think that the instruction complained of in this ground is erroneous.

In the fourth ground of their motion for new trial, movants complain of an instruction given by the court to the jury, not on the ground that it was erroneous, but that the court should have instructed the jury that, before they, could find for the plaintiff, they must find the facts recited in this instruction from a preponderance of the evidence. It is further alleged that the court erred in giving this instruction, because it nowhere else in its charge instructed the jury in reference to the law of the preponderance of evidence. There is no merit in these exceptions. Failure to give another appropriate instruction in connection with one given does not render the latter erroneous. Hays v. State, 114 Ga. 25 (4) (40 S. E. 13). In the absence of a timely written request, it is not a ground for the grant of a new trial that the court failed to instruct the jury the law on the subject of the preponderance of evidence. Mallary v. Moon, 130 Ga. 591 (61 S. E. 401).

The defendants further say the court erred in charging the jury as follows: “ I also charge you that possession of land through a tenant, occupancy by a tenant, would be such possession on the part of the one claiming ownership as is contemplated by the law with respect to notice; that would be such possession as would come within the rule of possession of land being notice of whatever right or title the owner had; and where a tenant of the -owner is in possession and inquiry would develop the true state of facts with reference to the state of occupancy of the tenant, such occupancy would be notice of every fact to the discovery of which inquiry would have led.” The errors alleged are: (a) that this instruction was unauthorized by the evidence and the issues in the case; (&) that it did not state the law correctly as applied to the facts and the issues; (c) that the recorded paper title was not in the plaintiff, but in her husband, and the court should have charged the jury that the presumption was that the tenant in possession was a tenant of the husband and that inquiry of the tenant would develop the fact that he was a tenant of the husband; and (d) that the charge did not state the law correctly and was inappropriate and misleading under the facts. We do not think that this charge was erroneous for any of the reasons assigned.

7. In the sixth ground of their motion for new trial, movants allege that the court erred in charging the jury as follows: “ If you should find that the plaintiff is otherwise entitled to recover, find that the plaintiff, Mrs. Hinson, is otherwise entitled to recover, and, under the instructions given you, is not precluded from recovering as against Tanner and his administrators, you would be authorized to find in her favor, notwithstanding the fact, if it is a fact, that a deed had been made to her by her husband, nor the fact, if it is a fact, that her complaint was not filed before — her complaint in this case was not filed before the purchase by Tanner and the recovery [conveyance] to him of the lands in question by Mr. Hinson, and notwithstanding the further fact, if it be a fact, that such conveyance was made to Mr. Tanner by Mr. Hinson. If she is otherwise entitled to recover and not precluded from recovering under the instructions as given you, and according to what you may find the truth to be of these issues, then she would not be precluded from recovering because of the circumstances stated, because no deed had been made to her by her husband, or because her complaint was not filed before the deed to Mr. Tanner was made, or because the deed to Mr. Tanner was in fact made by Mr. Hinson, conveying to him the lands in question.” The errors alleged are: (a) because it was inappropriate and misleading to the jury under the pleadings and the facts; (5) because it was admitted in the pleadings by both parties that no deed had been made by the plaintiff to her husband, thus authorizing the jury to infer that a deed had probably been made to her by her husband; (c) because the language, “nor the fact, if it is a fact,' that her complaint was not filed before the purchase by Tanner and the conveyance to him of the lands in question by Mr. Hinson,” it being admitted in the pleadings of plaintiff that the complaint was not filed before said purchase and conveyance, authorized the jury to infer that the complaint might have been filed prior to the making of the deed from Hinson to Tanner: (d) because the court used the language, “and notwithstanding the further fact, if it be a fact, that such conveyance was made to Mr. Tanner by Mr. Hinson,” it being admitted in the pleadings of plaintiff that such conveyance was made by Hinson to Tanner, and there being no issue whatever as to such conveyance; (e) because the manner in which said charge was given, and the raising of issues of fact which were not raised in the pleadings, were such as to confuse the jury and to authorize them to inject issues not raised on facts admitted by the pleadings and contentions of the parties; (/) because the court in said charge intimated to the jury that a deed might have been made to plaintiff by her husband, and that complaint of plaintiff might have been filed before the purchase of the land by Tanner and conveyance of same to him by Hinson, and intimated there was some doubt about the conveyance having been made by Hinson to Tanner, when all these questions were absolutely settled by the pleadings, and the court should have-so instructed the jury, which instructions, because of the way given and expressed; were hurtful to the cause of the defendants. While this instruction was not entirely accruate and appropriate, we do not think that it requires the grant of a new trial. The jury could hardly have been misled by the instruction. There is no intimation of opinion therein which could have worked harm to defendants.

8. In the tenth ground of their amendment to the motion defendants complain of the refusal of the court to continue the case on their motion. On the day the case was called for trial an order was passed making the administrators of B. H. Tanner, deceased, parties defendant in his place, which order was granted im mediately prior to the trial. When the ease was called, Tanner’s administrators announced not ready, and moved the court to continue the case on the ground that they had just been made parties defendant and had not had time to ascertain the condition of the estate, and asked for further time for that purpose and to ascertain the facts of the case. Error is assigned on the court’s refusal to continue the case. The court did not err in this ruling, because (1) it was not shown that the application for'continuance was not made for the purpose of delay (Civil Code (1910), § 5715); (2) because'the case had been long pending in court, and had 'tried once before; and (3) because no reason was given why defendants were not ready, other than that they had just been made parties, which alone would not entitle them to a postponement or continuance of the case.

9. In the eleventh ground of the amendment to their motion the defendants “ say that the court erred in his charge to the jury, in that he did not properly state the contentions of the defendants to the jury in said case;” defendants contending in the pleadings and on the trial that the plaintiff’s cause of action was a stale demand and was barred by laches and gross negligence; because the court' failed to charge the jury these contentions or the law governing stale demands in equity. The complaint is that the court erred in its charge, not because any instruction embraced therein was erroneous, but because the court did not properly state the contentions of defendants to the effect that plaintiff’s cause of action was a stale demand, and for failure to charge the law governing stale demands in equity. It is well-settled law in this court that a charge or instruction which is correct in itself is never error because of the failure of the court to give to the jury some other material and pertinent instruction. Hays v. State, supra. Furthermore the exception is too general. There is considerable “law in reference to and governing stale demands in equity;” and the specific instruction which the court should give ought to be pointed out.

10. We granted a rehearing in this case, for the purpose of further consideration of the error alleged by plaintiffs in error to have been committed by the court in the admission of the evidence set out in the eighth ground of the amendment to their motion for new trial; and for the further purpose of considering their complaint that the verdict was without evidence to support it. On the first question the Justices are evenly divided as before. So we will now deal only with the complaint that the verdict was without evidence to support it. In their motion for rehearing plaintiffs in error do not complain that the verdict in reference to the Hand tract of land was without evidence to support it; but they make this complaint with reference to the Graham tract, for reasons hereafter stated. In'her petition the plaintiff alleges that she bought in her own name and right, and with her own money, this land from Delia A. Graham for the sum of $400; that she got her husband to see about getting the deeds thereto; that she had recently ascertained that the deed to said land was made by the vendor to her husband; that she did not consent for the deed to be made to him; and that for this reason it was held by him under an implied trust for her. The jury was authorized to find that the wife made the trade for the purchase of this tract of land in her name; that on the day she made the trade and soon thereafter she became dissatisfied with her purchase; that she told her husband she did not want the land, that he could have it if he would pay for it, that he could have the deed made in his name, that she would furnish him the money with which to pay for the land and that he could pay her back; that she did furnish him the money with which to pay for same; that on the following day the husband paid for the land with the money she furnished, and took the deed in his own name; that on the latter day, and after the husband had taken the deed to the land in his name, the wife decided that she would keep the land, to which the husband consented; that, in consequence of this, the husband did not pay her back the money she furnished to pay for this land, and was relieved from its payment ; that he was to make her a deed to the same; that thereafter he acknowledged this land to be his wife’s and treated the same as hers, that thereafter she rented the same out and received the rents thereof; that she ever afterwards held possession of the lands by herself and tenants; that the husband neglected to make her a deed; and that the creditor took a conveyance of this land from the husband to pay the husband’s debt to him, with notice of the wife’s claim and title.

Counsel for plaintiffs in error urge that the testimony, the substance of which is set out above, fails to prove the plaintiff’s case as laid, but on the contrary disproves it. The further contention is made “that unless at the time the deed was made to the husband the trust attached to it in favor of the wife, such a trust could not attach to it by any subsequent change of mind on her part, even though that change of mind took place later on the same day.” It is further asserted that a resulting trust arising solely from the payment of the purchase-price is not created unless the purchase-money is paid either before or at the time of the purchase. The objection that there is a variance between the allegations of plaintiff’s petition and her proof is made for the first time, so far as the record discloses, in the motion for a rehearing. There was no objection to the admission of evidence on the ground that there were no pleadings or allegations which would authorize its admission. There is no specific ground in the motion for new trial which raises this question. The evidence was permitted to go to the jury unchallenged. If proof goes'to the jury without objection which would show a right in the party offering it, the jury may consider it, although there are no allegations in the pleadings setting up the facts thus proved. This'is put upon the ground that if objections be made and the pleadings do not authorize the testimony, the party tendering it might amend so as to make it admissible. After the party waives his objection by allowing the evidence to go to the jury without objection, he is not entitled to a new trial on the ground that the allegations and the proof do not correspond. Haiman v. Moses, 39 Ga. 708 (3); Field v. Martin, 49 Ga. 268 (3). If the wife merely advanced to the husband as a loan money with which he bought this land, no trust would result in her favor. Johnston v. Coney, 120 Ga. 767 (48 S. E. 373). “ A resulting trust which arises solely, from the payment of the purchase-price is not created, unless the purchase-money is paid either before or at the time of the purchase.” Hall v, Edwards, 140 Ga. 765 (79 S. E. 852); Rouston v. Farley, 146 Ga. 822 (92 S. E. 635). Eesulting trusts not only arise from the payment of the purchase-money, in which case the money must be paid before or at the time of the purchase, but may arise from other circumstances. Civil Code (1910), § 3739. In this case the wife made a trade for the purchase of this land. After she made it she became dissatisfied, and proposed to her husband that if'he would take it she would furnish him with the money with which to pay for it. The husband accepted the proposition,. and with money furnished by her paid for this land and took the title in his own name. If nothing else appeared, no resulting trust could arise in favor of the wife. On the same day during which the husband paid for the land and took the deed thereto in his own name, his wife changed her mind and decided to take the land herself. To this the husband agreed. She relieved the husband from the payment to her of the money advanced to him to pay for this land, and he agreed to make her a deed to the same. Thereafter the husband treated the land as the property of his wife. She held possession by herself and tenants. She received the rents therefrom. These circumstances created an implied trust or resulting trust in favor of the wife. The facts amount to a sale by the husband to the wife in payment of the money advanced by her to him to pay for this land. This would give the wife a perfect equity in the land. Grace v. Means, 129 Ga. 638 (59 S. E. 811). Thereafter the husband would hold the legal title as an implied trustee for the wife. In such a case the husband stands in the place. of a vendor with the purchase-money paid in full, and will be considered as holding legal title as trustee for the wife. So we are of the opinion that the evidence makes a resulting trust in favor of the wife, and that the verdict in this case is supported by the evidence. Judgment affirmed by operation of law.