Taylor v. Brown , 165 Ga. 698 ( 1928 )

Hill, J.

1. The verdict is to be construed in connection with the pleadings, the evidence, and the charge of the court. Harvey v. Head, 68 Ga. 247. Three plaintiffs were suing jointly to recover the land, and the jury found for one of the plaintiffs alone. It appears from the charge that the jury, having had the case under consideration, returned to the jury-box, and the foreman asked the court the following question: “If the jury should find in favor of one of the plaintiffs, what would become of the other interest?” Whereupon the court charged as follows: “If the jury should return a verdict in favor of one of the plaintiffs, naming him or her as the case may be, that would mean that the one plaintiff whom the jury finds in favor of would recover a one-third undivided interest in the lot of land sued for, and the defendants would hold the other two-thirds undivided interest in the lot of land sued for.” After this charge and further instructions to the same effect, the jury retired, resumed consideration of the case, and returned the verdict. In the circumstances the verdict should be construed as finding an undivided one-third interest in the land for the plaintiff whose name was specified, and in favor of the defendants as to the other two-thirds, and against the remaining plaintiffs, thus denying them any recovery. So construed, the verdict was sufficient, and the grounds of the motion for new trial complaining of it on account of its form are without merit. The case differs on its facts from the cases of Settle v. Alison, 8 Ga. 201 (52 Am. D. 393); Wood v. McGuire, 17 Ga. 361 (63 Am. D. 246).

2. Properly construed, the deed made by D. H. Davis on June 9, 1900, does not purport to create A. J. Pitts a trustee for Sarah M. Pitts or her children. The only legal title conferred upon A. J. Pitts was “a life-estate and interest in the land.” Estates in remainder were provided for the children; and in order for A. J. Pitts to become trustee for the children for suih estate, it would be necessary for him to have legal title to such estate for the use of the children. The instrument does not purport to confer legal title on him for such remainder estates. The language conferring upon A. J. Pitts “full control of” the land “at all times during his life for his wife and children not to sell in any manner but to live on and rent and manage as he sees fit for the best interest of his wife and children,” considered in connection with its context, relates merely to a power or agency, and is not to be construed as creating a trust, for the reason, as above indicated, that the instrument nowhere purported to convey to A. J. Pitts legal title to any interest which Sarah M. Pitts or her children should take under the deed.

3. Among others the deed contains the following provisions: “The said Sarah M. Pitts holds her interest so long as she lives or is a widow. If her present husband dies and she should marry again her interest in said land ceases and is of no more effect;” and “the said A. J. Pitts so long as he lives he has a lifetime estate and interest in the said land.” These provisions considered in connection with their context, properly construed, provide life-estates for both A. J. Pitts and Sarah M. Pitts in the property as a whole; the latter estate being subject to reduction to an estate in the whole property during widowhood in the event A. J. Pitts should predecease Sarah M. Pitts. The language, “the children she has by the said A. J. Pitts is the entire owners of said land and the same shall in no way be heired or controlled by no one except the said A. J. Pitts,” is not to be construed as vesting in the minor children an estate in remainder in an undivided interest in the land, to take effect at the death of Sarah M. Pitts prior to the ■ death of A. J. Pitts, but, the deed construed in its entirety, the estates in remainder to the children are to take effect at the death of the survivor of Sarah M. and A. J. Pitts.

4. The trial court, having so construed the deed, did not err in charging the jury: “A. J. Pitts, under the construction of the deed that the court makes in this case, could not be the guardian of these children as to this particular property, because, as already stated, the children were not entitled to come into the use and enjoyment of the property until after the death of A. J. Pitts.”

5. The court did not err in charging the jury as follows: “If a deed were made by a ward to his or her guardian, then, after such guardianship was over, such a deed as that would likewise be a voidable deed; a deed made under such circumstances would be voidable, it wouldn’t be absolutely void, but would be a voidable deed. It could be ratified and affirmed by election, or by acquiescence, the same as a minor could allow his deed to ripen into and become in time an unattackable title into one from his ward; and likewise they must move within a reasonable time after the guardianship has been dismissed, or after they had arrived at majority, to disaffirm such deed made by the ward to the guardian, if one was made during such guardianship.” Harris v. Cannon, 6 Ga. 382; Howard v. Tucker, 65 Ga. 323; Nathans v. Arkwright, 66 Ga. 179; Candler v. Clarke, 90 Ga. 550 (16 S. E. 645); Treadaway v. Richards, 92 Ga. 264 (3) (18 S. E. 25); Bentley v. Greer, 100 Ga. 35 (27 S. E. 974); McGarrily v. Cook, 154 Ga. 311 (114 S. E. 213).

6. The court did not err in admitting in evidence the deed by the children to A. J. Pitts, executed shortly after one of the children had attained majority, at which time the other two children had nearly attained majority, the two eldest children being at the time married women, and A. J. Pitts the grantee not having been discharged as their guardian. The deed was admissible in connection with other evidence tending to show there was no disaffirmance of the deed prior to the death of their father, which occurred several years before institution of the suit, and that each of them had receipted their father in full on settlement after attaining majority, and that he had been properly discharged.

1. Applying the principles, hereinbefore announced, none of the grounds of the motion for new trial show cause for reversal.

Judgment affirmed.

All the Justices concur. Bussell, C. J., Beck, P. J., and Gilbert and Hines, JJ., concur in the judgment.