Russ v. Myrick

Russell, C. J. 1. The verdict is in accord with the evidence, and amply-supported. 2. The recital in the deed from the plaintiff to the defendant, that “ this deed is made for the purpose of abrogating, cancelling, and making void the deed executed by Susan R. Myrick to R. A. Benton and Tedie Benton on the 28th day of August, 1915,” etc., was not such a recital as amounted to a disclaimer of the title, but on the contrary was, impliedly at least, a denial of the validity of the writing referred to. Moreover, the apparent ambiguity in the recital quoted was subject to explanation, and it appears from evidence in the record, to which no objection was offered, that the deed to which reference is made had in fact been judicially cancelled. 3. The court correctly charged the jury on the issues involved. If the defendant desired the special attention of the jury directed to the special principle that the record of a deed is prima facie evidence of delivery, an appropriate and timely reqirest should have been presented to the court. Horton v. Smith, 115 Ga. 66 (4) (41 S. E. 253); Capital City Oil Co. v. Central of Ga. Ry. Co., 16 Ga. App. 750 (86 S. E. 57). The question of the delivery or non-delivery of the deed in question was an issue in the case, 'and as to this the instructions of the court were clear and correct. The complaint made is that there is no specific instruction upon the weight of a particular circumstance in proof; and such an omission is not error, in the absence of a request for instructions. The instructions, upon the absence of which error is now assigned, would only have called the attention of the jury to one of the evidentiary elements necessary in order to entitle the plaintiff to recover, a circumstance which the plaintiff could rebut, and one which, according to the verdict of the jury, was rebutted by the evidence in the record. [830] No. 3042. January 24, 1923. 4. The court did not err in admitting the testimony of the plaintiff, that “ they kept after me and worrying me and begging of me to make them over a part of the land; that they would take care of me my lifetime,” over the obj ection “ that it did not show any undue influence sufficient in law to warrant the cancellation of the deed.” Nor was it error to admit the foregoing testimony for the reason that “ it was an attempt to engraft upon the deed, which contained no ambiguity upon its face, another stipulation.” Judgment affirmed. All the Justices concur. Titus & Delete, for plaintiff in error. Jeff. A. Pope and P. G. Andrews, contra.