Muller v. Rhuman , 62 Ga. 332 ( 1879 )

Warner, Chief Justice.

This was a bill filed by the complainant against the defendants to obtain the possession of certain real estate in the city of Atlanta therein described, upon the allegations contained in said bill. On the trial of the case, the jury, under the evidence and charge of the court, found a verdict for the complainant. The defendants made a motion for a new trial on the grounds therein stated, which was overruled, and the defendants excepted.

The complainant claims title to the premises in dispute under a deed executed by Peter Huge on the 10th of February, 1871, by which the said Peter Huge conveyed the said premises to Catharine Oelrich during her natural life, and at her death to such child or children as she may have by her present husband, Peter Oelrich; and if she should die leaving no child or children by her present husband surviving her, then the title to vest in her said husband, Peter Oelrich; and if the said Peter Oelrich should die before his said wife, and the said Catharine should die leaving no child or children surviving her, then the title to vest m the next of kin of said Peter Oelrich. The complainant claims the premises sued for as the next of kin of Peter Oelrich, the said Peter having died on the 24th of January, 1877, without child or children, leaving his wife, Catharine, surviving him, who, on the 24th of March, 1877, also died, leaving no child or children.

1. There was no error in ruling out the record offered in evidence of what purported to be a former decree between the parties therein, inasmuch as there was no process of subpcena to the bill, nor any legal service thereof, and on account of other irregularities, which it is unnecessary tO' mention.

2. There was no error in ruling out the evidence of Breitenbucher, in view of the facts disclosed in the record, as to the alleged mistake in the deed of Peter Huge. It is true that the parties claiming under the conveyance of the property from Peter Huge were botli living, but the administrator of Peter Huge was not a party to the defendants’ cross-bill, and no decree reforming the deed on account of the alleged mistake therein could have been made without making his administrator a party; and if he had been made a party as he ought to have been, then Breitenbucher would have been an incompetent witness under the statute, Peter Huge being dead.

3, 4. There was no error in ruling out the parol evidence of Woolf, Bass, and others, as to the terms of the deed, or as to the declararations of Peter Huge made after the execution and delivery of the deed, that there was a mistake in it.

5. There was no error in admitting the evidence of Rhuman and Finger as to the sayings of Oelrich and wife when they were in the possession of the projaerty, that it would go to the plaintiff after the death of Mrs. Oelrich.

6. The evidence of George Rhuman as to the death of Rebecca Hanson, the other sister of Peter Oelrich, was admitted without objection, and the effect of that evidence was a question for the jury, who, by their verdict, must have believed it, as they found that the complainant was entitled to the whole of the property sued for.

7. The charge of the court, that the jury must believe from the evidence beyond a reasonable doubt that the alleged mistake in the deed was committed, is to be understood as applicable to the admission of parol evidence to show a mistake in a written contract, and to that extent it was not error.

In view of the facts as disclosed by the evidence in the record, there was no error in overruling the defendants’ motion for a new trial.

Let the judgment of the court below be affirmed.