Graham v. Graham , 137 Ga. 668 ( 1912 )

Atkinson, J.

1. If a party is sued at law and lias a legal defense, he must avail himself of it at law pending the suit, and can not after-wards ask for relief, unless he was prevented from so pleading his defense by fraud, accident, or the act of the adverse party, unmixed with negligence on his part. Thomason v. Fannin, 54 Ga. 361 (2). See also Civil Code, § 4585; Pollock v. Gilbert, 16 Ga. 398 (60 Am. D. 732); Moore v. Gill, 43 Ga. 388; Brown v. Boynton, 69 Ga. 754; McCall v. Fry, 120 Ga. 661 (48 S. E. 200).

(a) Accordingly, in an action of complaint for land by one claiming title under a deed, a copy of which had been established in a proceeding under the Civil Code5 §§ 4191, 5314 et seq., against one who had been a defendant in such proceeding, and who claimed from the same grantor by virtue of a deed executed subsequently to the date of the alleged lost original, a duly certified transcript of the record of the superior court, including the pleadings and judgment establishing a copy of the deed in lieu of the alleged lost original, was admissible in evidence over the objection that the grantor was not a party to the action, and was not served, and that the defendant in the action of complaint for land was an improper party in the statutory proceeding to establish a copy of the lost deed, it appearing that the grantor had died, that there was no administration upon the estate, and that all the heirs at law of the grantor, including the defendant in the action for land, were made parties and duly served.

<b) Nor was it error to exclude evidence offered by the defendant, which purported to go behind the judgment establishing a copy of the lost deed, and tended to show that the grantor signed, but did not deliver, the alleged lost deéd, and that a, warranty deed was executed by the same grantor, conveying the same property to the defendant, subsequently to the signing of the alleged lost deed; it further appearing from such testimony that the defendant had full notice of the fact that the grantor had signed the alleged lost deed before the execution of the deed under which the defendant claimed.

2. Jurors are not absolutely bound by the opinions of witnesses as to the rental value of land for the recovery of which an action is brought. McCarthy v. Lazarus, ante, 282 (73 S. E. 493). The trial judge therefore erred in directing a verdict for mesne profits in accordance with the opinion of witnesses as to the rental value of the premises.

Judgment reversed.

All the Justices concw, except Sill, J., not presiding.

The defendant introduced her deed in evidence, and testified in substance as alleged in her plea; but all of her testimony was ruled out on motion of the plaintiff, whose objections were: (a) that the deed from Mary E. Graham to the plaintiff passed the title to the land; and if he failed to maintain and support her during her life, and to bury her after her death, such failure did not affect his title; (5) that if the defendant carried out her contract with Mary E. Graham, it would not affect the plaintiff’s title; (c) that the defendant by her. testimony sought to attack a regularly established copy of a deed executed by Mary E. Graham to the plaintiff, when the defendant was a party to the proceeding to establish the copy, and was bound by the judgment therein; and she was therefore estopped. The court directed a verdict in favor of the plaintiff “for the premises in dispute, and seventy-five dollars per year for three years, as mesne profits, with costs of suit.” The defendant excepted to each of the rulings before stated.

J. F. L. Bond and Worley & Nall, for plaintiff in error. Berry T. Moseley and John J. Strickland, contra.