Darsey v. Darsey , 138 Ga. 584 ( 1912 )

Atkinson, J.

According to the case as made by the plaintiff, the following facts appear: Jesse Darsey died, leaving certain real estate. On July 1, 1865, there was an agreed division or partition among his heirs. One of these was Jesse E. Darsey; and another was his sister, the present plaintiff, Lizzie Darsey, the wife of John Darsey. Deeds were made by the respective tenants in common, for the purpose of carrying into effect the partition thus made. As to the share which fell to plaintiff, the other tenants in common made a deed to John Darsey, and he and the plaintiff went into possession of the land so conveyed, and remained in possession until December 1, 1865. This, under the law as existing prior to the act of 1866 (Acts 1866, p. 146), known as the married -woman’s act, operated to put the title to the share which fell to the plaintiff into her husband, and it became his absolutely by virtue of Ms marital rights and of such conveyance and dominion. Code of 1863, § 1701-2; Arnold v. Limeburger, 122 Ga. 72 (49 S. E. 812). The share which fell to Jesse E. Darsey included two lots in Mitchell county, and lot 26 in Decatur county, the lot now in dispute. A deed was made to him, which was signed by John Darsey and Eobert Daniel, the husbands of the other two tenants in common. According to the- plaintiff’s allegations and proof, on the day when the partition was made a parol agreement was made with her brother, Jesse E. Darsey, by which there was to be an “ exchange of shares,” so that the share which was allotted to the plaintiff and which passed to her husband, as above stated, should go to Jesse E. Darsey, and the part which was allotted to him and conveyed to him, as above stated, should be transferred to plaintiff. After the marital rights of John Darsey had fully attached to the share allotted to plaintiff, she had no interest whatever in it. The plaintiff contends that this share was delivered to her brother, Jesse E. Darsey, in lieu of the share allotted to him in the division. Her husband was present, and either made the trade or certainly took part in making it; so that according to her own showing it was in law an exchange between her husband and her brother, whether she took part in the negotiations or not. No trust was shown and no creation of a separate estate. This would not serve to vest any title in her to that which was exchanged by her brother for the property of her husband. According to the basis on which her claim rests, she acquired nothing by the exchánge. If any equitable title arose from it, it was in her husband, not in her. After December 1, 1865, she and her husband took possession of the two lots in Mitchell county, which had formed a part of her brother’s share in the partition of the estate. Lot 26 in Decatur county, the land in dispute, was wild land, and nobody had actual possession of it. She exercised no dominion over it, paid no taxes upon it, and did nothing to assert, much less create title to it in herself. Her testimony indicated that the taxes were paid by her brother, Jesse E. Darsey. The defendants are the widow and children of Jesse E. Darsey. They contend that in the partition of the estate lot 26 fell to his share. They deny that it was ’included in the trade under which the plaintiff asserts title, but contend that the two lots in Mitchell county alone were included, and that Jesse E. Darsey retained the title to the lot now in dispute, •which she had acquired by virtue of the partition. If the contention of the defendants is true, and the lot in dispute was never traded by Jesse E. Darsey at all, of course the plaintiff would have no case, and would not be entitled to recover. Nor would she have title or be entitled to recover if the lot was included in the trade, because the property traded to Jesse E. Darsey, constituting the consideration paid to Jesse E. Darsey for the property in dispute, was the property of John Darsey, and no deed was ever made to plaintiff. If John Darsey did not make the trade alone, as some of plaintiff’s testimony indicates, but they negotiated together, this would not alone serve to put any title in the plaintiff. John Darsey is not shown ever to have done anything to relinquish his rights, or to convey any rights to plaintiff. Therefore, in either event, whether the contention of the defendants or that arising from the pleadings and evidence of the plaintiff be correct, the latter has no title, legal or equitable, to the land in dispute. In the evidence of the plaintiff there áre some loose and vague expressions that Oscar Darsey, one of the defendants, moved on the land with her consent and permission, but immediately thereafter she testified that she did not have airy conversation of any kind with Oscar Darsey relative to his possession of the property at the time he went upon it, and never said anything at all about it until he was going to sell it, “and I put in my claim and tried to explain it, but could not make any agreement relative to it.” She also used certain expressions to the effect that “we were not going to charge him for the land,” etc. Apparently this referred to herself and her husband. Inasmuch as she had no title to the land, as has been shown above, her consent or agreement was unnecessary. If John Darsey had title to the land and consented, this would not make Oscar Darsey the plaintiff’s tenant or Oscar Darsey’s possession the plaintiff’s possession; and if John Darsey conferred with plaintiff in regard to' the management of his property and she acquiesced, especially in view of tffe fact that he had acquired the property by reason of his marital rights, it amounted to nothing more than a conference between husband and wife. Taking her testimony as a whole, it makes no case of tenancy or permissive holding by the plaintiff, requiring a submission of the case to the jury.

Under the views above expressed, had the evidence objected to by plaintiff been excluded, or that which was offered by her and excluded been admitted, the result would not have been affected.

Judgment affirmed.

All the Justices concur.