Cook v. Powell

Hines, J. 1. • The petition in this case sets forth a cause of action, and was good against the general demurrers. The contract between Powell and Cook was founded on a sufficient consideration, was not illegal, and will be enforced in a court of equity. Rives v. Lawrence, 41 Ga. 283; Moye v. Clarke, 69 Ga. 750; Board of Education v. Day, 128 Ga. 156 (4), 162 (57 S. E. 359); Carr v. Graham, 128 Ga. 622 (57 S. E. 875); Lucas v. Brock, 154 Ga. 172 (113 S. E. 804). 2. The special demurrer of Cook to paragraph five of the petition is without merit. This paragraph undertook to set out the terms of an agreement, and to accomplish this purpose it was not necessary -for the pleader to attach a copy of a suit therein referred to but not made a part of the agreement. This paragraph is not indefinite and uncertain as to the terms of the alleged contract. A declaration need not show that the contract sued on was in writing, though required by statute to be. Draper v. Macon Dry Goods Co., 103 Ga. 661 (30 S. E. 566, 68 Am. St. R. 136). 3. Cook demurred specially to the fifth and sixth paragraphs of the petition, because they failed to set out any right of action against him, and because a copy of the paper therein referred to was not attached to the petition. Under the ruling in the first lieadnote the first ground of this demurrer is without merit. Eailure to attach a copy of the paper therein referred to was explained in the petition by a showing that this paper had never been recorded and was not in the possession of the pleader. 4. The entire petition is not subject to the special demurrer of Cook on the grounds, (1) that it does not state sufficient facts to constitute a legal fraud upon the plaintiff, (2) because there is a misjoinder of parties defendant, and (3) because no definite contract is set out. 5. The general and special demurrers of the other defendants are without merit. 6. In the first and second grounds of the amendment to his motion for new trial the defendant alleges that the court below erred in refusing written requests to give in charge to the jury certain instructions to the effect that he was not chargeable with mesne profits and rent arising from the increased rental value of the land, due to improvements put thereon by him. This principle was not applicable under the facts of this case. While this principle is applicable under certain circumstances (Lee v. Humphries, 124 Ga. 539, 52 S. E. 1007; Norris v. Richardson, 151 Ga. 31, 105 S. E. 493; Winn v. Rainey, 153 Ga. 641, [832] 113 S. E. 8), under the plaintiff’s theory the defendant did not hold this land adversely to him, but under an agreement by which plaintiff had the right to redeem these premises upon payment to Cook of the amount of money, with interest thereon, which the latter paid at his instance and request to take up an incumbrance placed thereon by him, and from which he had the right to redeem the same by paying to the holder the amount of such incumbrance. Cook was liable for the actual rents and profits derived by him from the land. Page v. Blackshear, 78 Ga. 597 (3 S. E. 423); Polhill v. Brown, 84 Ga. 338 (10) (10 S. E. 921); Coates v. Jones, 142 Ga. 237 (82 S. E. 649); Jones v. Laramore, 149 Ga. 825 (102 S. E. 526). Under the agreement which the plaintiff ' set up, the defendant was to apply the rents first to the payment of taxes and costs of repairs, and the balance to the discharge of the amount which the defendant had paid to the Bank of Kestler for the plaintiff to redeem these premises from that bank. It follows under the above ruling that the trial judge did not err in refusing these instructions. 7. The defendant, in the third ground of the amendment to his motion for new trial, alleges -that the court erred in refusing a timely written request to give to the jury the following: “I charge you that if you should believe from the evidence, either oral or documentary, that the plaintiff in this case swapped the land in question to J. W. Bailey, for lot of land No. 235 in the 12th land district of Miller County, Georgia, and if you should further believe from the testimony in the case, either oral or documentary, that after the alleged swap, if the evidence discloses such, that Powell took possession of lot No. 235 in the 12th district of Miller County, Georgia, and if it should appear from the testimony in the case that Bailey sold the land now in question to a man by the name of Kelley, and if it should further appear from the evidence in the case that after this time in which it is claimed that the swap was consummated that Bailey brought a suit against H. C. Powell to recover from him lot of land No. 235 in the 12th land district of Miller County, Georgia, and if you should further find from the testimony that that suit was tried in the proper court or courts of this State, and a verdict and judgment was rendered in the case in favor of H. C. PowTell and against J. W. Bailey and sustaining Powell’s defense, then I charge you, if those facts have been made to appear from the testimony in the case, that is to say either oral or documentary evidence, that the plaintiff would not be entitled to recover in this case.” The court did not err in refusing to give to the jury the instruction embraced in this request. Election of remedies was not involved. The defendant could not set up outstanding title in a third person to defeat plaintiff’s right of redemption under the contract between these parties, if such contract was in fact made. 8. In the fourth ground the defendant Cook complains that the court erred in permitting the plaintiff, over his objection, to testify that he had never disclaimed or stated that he did not have a right to redeem and take up this land. Counsel for the defendant objected to the admission of this evidence, on the ground that it was irrelevant and immaterial. This objection was without merit; and even if the testimony had been irrelevant, its. admission was not of such a harmful [833] nature as to require the grant of a new trial. In his ruling upon the admission of this testimony the trial judge did not express any opinion upon the evidence. 9. In the fifth ground the defendant alleges that the court erred in refusing to exclude the evidence of John Hightower, a witness for the plaintiff, to the effect that he had an understanding with Powell that he was to buy in the land for Powell, and that Powell was to redeem it and take it up. Movant moved to exclude this testimony, upon the ground that the defendant was not present and had nothing to do with it; and. upon the further ground that it happened upon'the day of the sale of the land, that it was hearsay, and was a declaration made by the plaintiff in his own behalf and not in the presence of Cook. These objections were without merit. Proof of this understanding was essential to explain the history of the transaction, and to show the bank’s willingness for plaintiff to redeem this land, and the circumstances under which the Bank of Kestler conveyed this land to the defendant. 10. In the sixth ground of this amendment the defendant Cook insists that the court erred in not excluding, on his motion, the testimony of the witness J. W. Bailey, to the effect that a certain deed was made for the purpose of getting a clear title in Cook from various parties that Powell owed, in order that Powell could secure Cook for a certain amount of money. The grounds of the motion to exclude were, that this testimony varied the terms and conditions of the deed itself, ■ and that it was irrelevant and immaterial. The terms and conditions of the deed not being set out, it is-impossible for this court to determine whether this testimony varied the same or not. For the same reason it is impossible for this court to say whether the testimony was irrevelant or not. 11. In the seventh ground the defendant Cook complains that the court erred in excluding, when offered by him, a deed dated December 23, 1914, from C. H. Cross to plaintiff, conveying 100 acres of land, more or less, in the form of a parallelogram, and on the north side of lot No. 143, also 100-1/2 acres of land, more or less, on the south side of lot of land No. 144, which is fully described in this ground. This was a warranty deed. The court excluded the same upon the ground that it was irrelevant. We think this ruling was correct. Moreover, it appears from the recitals in this matter that counsel for the defendant admitted the irrelevancy of this paper. Furthermore, if this ruling was erroneous, it was harmless, as the defendant got this proof in another form before the jury. 12. In the eighth ground the defendant Cook asserts that the court erred in excluding, when offered by him, a tax fi. fa. issued by the tax-collector of Miller Comity, against H. C. Powell, for $18.69 principal, and interest, for State and county taxes for the year 1907, with the entry of levy thereon on February 7, 1908, upon personalty; and the transfer of this fi. fa. to the defendant Cook by the tax-collector of Miller County, dated April 23, 1908. The transfer of this execution by the tax-collector was illegal and void. Civil Code (1910), § 1145; Acts 1915, p. 11; 8 Park’s Ann. Code Supp. (1922), § 1225; Thompson [834] v. Adams, 157 Ga. 42 (1-a) (120 S. E. 529). It follows that the court did not err in ruling out this testimony. 13. In the ninth ground the defendant Cook asserts that the court erred in excluding from the jury a statement of the rents received by him from the premises in dispute, the same being prepared by one C. H. Cook, who testified that he had prepared it himself from his books, but knew that it was correct, .independently of the books. In the tenth ground the defendant complains that the court erred in excluding from the jury a statement of the amounts paid out for repairs on the land in dispute, the statement having been identified by C. H. Cook as being correct, who testified that, although taken from his books, he knew that it was correct, independently of the books. These statements being based upon the books, such books should have been produced, proved, and submitted in the usual way. Crawford v. Stetson, 51 Ga. 120. It follows that the court did not err in rejecting these statements. Besides, the court permitted the witness to testify as to all rents received by the defendant from this land, and as to amounts expended by him in making repairs and in the payment of taxes. 14, In the eleventh, twelfth, and thirteenth grounds the defendant alleges ■ that the court erred in not charging the jury, without requests, that (11) if this land was sold for taxes, and was bought in by one Bailey at the tax sale, and Bailey conveyed the same to the defendant, Cook, then the plaintiff could not recover; (12). that if the plaintiff, prior to the agreement between him and Cook, swapped the land in dispute to Bailey for other land, and if each went into the possession of the land received under the exchange, and each sold the land received by him to third persons, then the plaintiff could not recover, for the reason that if plaintiff elected to claim the land received by him under the exchange, he would be estopped from maintaining the present suit; and (13) that if the jury believed that the above exchange of lands was consummated, though no deeds were made, if the plaintiff took possession of the land which he got under this exchange, and - Bailey afterwards brought suit against plaintiff to recover the land which he received under the swap, and in defense of this suit plaintiff set up that he had swapped the land in dispute to Bailey for the land which he got under said swap, and if this suit resulted in a verdict and judgment in favor of plaintiff, and Bailey was forced under such judgment to convey to the plaintiff the land which he got in such exchange, then that such swap divested the title of plaintiff to the land in dispute, and plaintiff would be estopped to maintain this suit. The tidal judge did not err in omitting to give the above instructions to the jury. This court has held that a grantor or one who joins in a conveyance is estopped by his deed to deny that he had title at the time of the grant. Hall v. Davis, 73 Ga. 101. So a grantee is estopped to deny the seizin of the grantor. Chapman v. Schroeder, 10 Ga. 321; Harris v. Amoskeag Lumber Co., 101 Ga. 641, 644 (29 S. E. 302). When Cook acquired title to this land, in which Powell' had an equitable title or right, under an agreement between them, by which the holder of the legal title was to and did convey the land to Cook upon his payment of the amount due by Powell to the holder of the legal title, and by which Powell should have the right to redeem [835] the land by paying to Cook the amount so paid out for Powell in order to put the legal title in Cook, the latter is estopped from denying the title of Powell to this land and from referring his possession to rights acquired under a conveyance by a third party to him. Cook is estopped from denying the effect of this agreement if it was in fact made, and can not subsequently claim adversely thereto under a title acquired since the making of the agreement. See Parker v. Jones, 57 Ga. 204. No. 4905. August 14, 1925. 15. Under the ruling in the last paragraph, the court did not err in failing to give the instructions which the defendant in the fourteenth and fifteenth grounds of his motion for new trial claims that the court should have given to the jury. 16. In the sixteenth and seventeenth grounds the defendant complains that the court erred in not charging the jury, without any request to do so, that if they should believe from the evidence that plaintiff entered into the agreement with Cook which the former seeks to enforce in this proceeding, and in pursuance of such agreement procured the bank to convey to Cook the land in dispute for the purpose of delaying, hindering, or defrauding his creditors, the plaintiff would not be entitled to recover. This issue not being raised by the pleadings and the evidence, the court, in the absence of a timely written request, did not err in omitting to give to the jury an instruction thereon. City of Atlanta v. Blackman Health Resort, 153 Ga. 499 (4) (113 S. E. 545). Properly construed, there was no evidence upon which to base this instruction. 17. In the absence of timely written requests, the court did not err in failing to charge the jury that the burden was upon the plaintiff to show that there was a certain and definite contract between him and the defendant Cook, and that the burden was upon the plaintiff to prove the contract beyond a reasonable doubt. This disposes of the eighteenth and nineteenth grounds of the motion for new trial. 18. The court did not err in its instruction to the jury as to the form of their verdict, as complained of in the 20th ground of the motion for new trial. 19. In view of the ruling made in the sixth paragraph above, the court did not err in giving the instruction of which the movant complains in the twenty-first ground of the motion for new trial. 20. In the twenty-second ground of the motion for new trial the defendant Cook complains of the form of decree. A motion for new trial is not an available remedy for reviewing an exception to the form of a decree. Vickers v. Robinson, 157 Ga. 731 (7) (122 S. E. 405). 21. The other special grounds of the motion for new trial are without merit; and there is evidence to support the verdict. Judgment affirmed. All the Justices concur. W. I. Geer and Peter Z. Geer, for plaintiffs in error. Harrell & Custer and P. D. Rich, contra.