National Bauxite Co. v. Republic Mining & Manufacturing Co. , 146 Ga. 530 ( 1917 )

Beck, J.

(After stating the foregoing facts.) In 1872 James E. Jackson executed a deed to his sisters, Harriet B. Jackson and Eaithey C. Hunnieutt, conveying to them land lot 164 in the 4th land district of Wilkinson county. The conveyance to Eaithey C. Hunnieutt created a life-estate in her, and at her death to her four children, Harriet, Walter, Rufus (J. R.), and Dora. The land lot was divided between Harriet B. Jackson and Eaithey C. Hunnieutt, and under the division Harriet B. Jackson took possession of the southern half of the lot and Eaithey 'C. Hunnieutt and children as remaindermen took as their part the northern half, Eaithey Hunnieutt having a life-estate therein, with remainder over to her children. Both the plaintiff and the defendants trace their title to James E. Jackson as common grantor. The statement as to division of lot 164 is taken from a finding of the auditor not excepted to. The auditor also found that there had been a parol partition, between the children of Eaithey 0. Hunnicutt, of the northern half of lot 164, which Eaithey C. Hunnieutt took in the division between herself and Harriet B. Jackson, which partition was made in pursuance of a parol agreement between Eaithey C. Hunnieutt and her children. To the finding of the auditor that the partition and division of the land was valid, and vested the four children of Eaithey C. Hunnieutt with title to the separate parcels of land into which the northern half of lot 164 ■was divided, the plaintiff excepted and says that it was without evidence to authorize it. This exception was overruled by the trial judge, and we think it was properly overruled. We agree with the finding of the auditor, that, “While there was some evidence that seemed to indicate that at certain times this possession [of the children of the life-tenant] was permissive on the part of the life-tenant, the preponderance of evidence shows that the division and possession was by direction and consent of the life-tenant’ for the purpose of placing the title of the property in her several children, and the division was ratified by Dora Daniel, a minor at the time of the division, after she arrived at majority.” And if J. R. Hunnicutt, one of the children, was not of age at the time of the division and partition of the land in controversy, the uncontroverted evidence shows that he ratified, after becoming of age, the division that was’ made under the agreement and by the consent of the life-tenant.

Material evidence to establish the fact of the division and partition of the northern half of lot 164, as set forth above, was given by J. B. Hunnicutt, who was a witness at the hearing before the auditor. Belatively to the testimony of J. B. Hunnicutt the auditor noted the following objection to evidence offered by defendant: “Objection to and motion to rule out every question and answer of witness with reference to any agreement to partition this land, on the ground that he has sold a one-fourth interest in the property sued for to the plaintiffs, and is estopped from denying his own title; and also every question and answer made by the witness in reference to any statement of Faithey Hunnicutt, on the ground that she is dead, and he is incompetent to testify and is estopped from testifying to anything in .derogation of his own title.” To this ruling the plaintiff excepted as follows: “Plaintiff excepts to the ruling of the auditor as shown on page seven of his report, admitting the testimony of J. B. Hunnicutt over the objection of plaintiff’s counsel as therein set forth, and for grounds of exception says: (a) That the said J¡ B. Hunnicutt conveyed to the plaintiff, National Bauxite Company, the interest in said property sued for, same being an undivided one-fourth interest therein, and that he is estopped from denying his own title to the property and is estopped from testifying to any fact showing, or tending to show, that he did not own the property at the time he made said deed. (b) That he is estopped from testifying to any fact or any action whatever in derogation of his own title to the property conveyed by him by warranty deed, to the plaintiff in this case, (c) For the evidence pertinent to this exception see the auditor’s brief of evidence, page one, showing the deed from J. B. Hunnicutt and wife to National Bauxite Company, dated April 37th, 1909, conveying a one-fourth undivided interest in the seventy-five acres of land described in the petition; and the evidence of J. B. Hunnicutt, 39, 40, 41, and 43 of the auditor’s brief of evidence.” This exception to the ruling of the auditor upon the admission of evidence is incomplete and insufficient. The exception does not contain literally or in substance the evidence objected to, and it is not sufficient to refer this court to other parts of the record to ascertain what the evidence was. “An exception to an auditor’s report, complaining of the admission of evidence, should set forth the evidence objected to.” Griffin v. Collins, 125 Ga. 159 (53 S. E. 1004). “Assignments of error based on the ground that an auditor improperly overruled objections urged against the admission of evidence can not be considered unless the evidence objected to be set forth, either literally or in substance, in the exceptions filed to his report.” Trentham, v. Bluthenthal & Bickart, 118 Ga. 530 (2) (45 S. E. 421). This is also ruled in the case of Rusk v. Hill, 117 Ga. 722 (45 S. E. 42). This rule applies, of course, where the admission of evidence over objection is excepted to in motions for new trial, and scores of cases could be cited laying down the rule as applicable to grounds of a motion for a new trial. There is no reason why the rule should not prevail with all its strictness in cases of exceptions to the admission of evidence by an auditor. In fact there is reason for applying the rule more stringently there than in ordinary cases, because the 'records of cases referred to auditors are generally voluminous, and it would place an intolerable burden upon this court to compel the court to turn from one part of the record to another in order to render an exception complete.

What we have said in reference to the exception to the admission of the testimony of J. B. Hunnieutt applies also to the exceptions to the admission of the testimony of several other witnesses, and to the admission of a certain affidavit in evidence over objection. There was no attempt at all to set forth in the exceptions, either literally or in substance, the evidence alleged to be objectionable.

If the deeds conveying certain portions of the southern half of lot 164 were immaterial, as insisted by the plaintiff in error, because they do not embrace any of the lands in controversy, still their admission in evidence did not hurt the plaintiff in error.

The exceptions of the plaintiff in error not specifically referred to are without merit.

It follows from what is said above that the judgment of the court below is affirmed upon the main bill of exceptions; and. the cross-bills of exceptions filed by the defendants will be dismissed.

All the Justices concur, except Fish, G. J., absent.