Akins v. Parker , 199 Ga. 273 ( 1945 )

1. Where the grantor of a deed given upon the consideration that the two grantees should take care of him during his life, sought to cancel the deed on the ground that one of the grantees had not carried out his agreement, and such grantee filed an answer in the nature of a cross-petition seeking, in the event that the deed should be canceled, a money judgment for services rendered the grantor, the court's omission, in the absence of an appropriate request, to instruct the jury on a contention not made by the pleading, though supported by some evidence, was not cause for a new trial.

2. The evidence, though conflicting, was sufficient to support the verdict.

No. 15164. MAY 10, 1945. R. S. Akins filed a petition in Paulding superior court against John Parker, which alleged substantially the following: On October 3, 1938, the petitioner conveyed a described tract of land to the defendant and Miss China Camp. The consideration stated in the deed was "one dollar and other valuable consideration," and "the services rendered to the [grantor] during the last three years by the [grantees] in nursing and keeping house for the [grantor], and for further services, keeping house, cooking, nursing, and caring for the [grantor] for and during his life, he the [grantor] paying the taxes on said property, . . and reserving possession for and during his life. . . And it is . . agreed . . that if the grantees herein should fail, without good cause, to keep house, nurse, and care for the said grantor herein named, then and in that event the deed shall become null and void." Miss China Camp has conveyed her interest in the property back to the petitioner, thus leaving a half undivided interest in the defendant. The petitioner is an invalid and unable to care for and keep house for himself. The defendant is insolvent and, though requested so to do, has, since December 1, 1940, failed and refused to cook, keep house, nurse, and care for the petitioner. Although the deed has become void and is a cloud upon the petitioner's title, the defendant still resides on the property with his family and refuses to surrender possession. A copy of the deed was attached as an exhibit to the petition. The petitioner prayed that the deed be canceled as a cloud upon his title, that he recover possession of the property, and for process.

The defendant filed an answer in the nature of a cross-petition, admitting designated allegations of the petition but averring that he had performed his part of the contract as far as he was permitted, has carried out every request made by the petitioner, and stands ready to perform any and all agreements made with the petitioner. The only request he has failed to comply with is to reconvey the property. That for three years before the execution of the deed he had been waiting on, helping, and aiding the petitioner in various ways, and the deed was voluntarily executed as payment for such services. That he is a carpenter, and since the execution of the deed he used his own lumber and without pay helped build on the land a residence which the petitioner is renting for $12 a month. He also repaired without pay the residence in which the petitioner lives, and, with the consent of the petitioner, erected at a cost of $200 another residence in which the defendant lives. With the exception of the house last mentioned, the petitioner is in possession of the property. In the circumstances, to cancel the deed would be a fraud on the defendant. It was agreed by all the parties that the other grantee, Miss China Camp, would do the cooking, nursing, washing, and waiting on the petitioner, while the defendant was to help the petitioner with the management of his affairs, and do such other work as he had been doing for the petitioner, all of which the defendant alleged he had done and would continue to do whenever requested by the petitioner. That the petitioner had no right to have the deed canceled, but, if the same should be done, then the petitioner should be required to pay him for his work and the cost of erecting the residence in which the defendant lives, all of which is of the value of $700, and the defendant prayed that he have judgment for such amount.

On the trial, the evidence showed that the grantees in the deed, Miss China Camp and John Parker, were respectively a niece and a brother-in-law of the grantor. The evidence was conflicting on the question whether Parker had carried out his part of the agreement. Witnesses for the plaintiff testified that he failed to do so, and that the house erected by him in which he lived was not worth more than $40 to $50, while he testified in effect: That he had performed all duties required of him; that the house he built was worth $300 to $400, and that his services in waiting on the petitioner were worth $500. Referring to the house which the defendant erected, the plaintiff testified: "The house is worth $7 or $8 for rent, the way times are now. . . The house [the defendant] built . . was two rooms, 12 by 12, and then about two years later he built a little side room about eight or ten by twelve, at the end of the house. . . When he built the house, he asked me to let him rent it, that he could get $8 a month for it."

The jury returned a verdict canceling the deed, and further found $500 in favor of the defendant. The exception is to a judgment overruling the petitioner's motion for a new trial. 1. The only special ground of the motion for new trial complains because the judge in his instructions to the jury, after fully setting out the claim of the defendant for the cost of improvements, failed to call attention to the question of rents claimed by the petitioner on the house built by the defendant. The criticism is that the failure to instruct the jury as to their right to allow rents against the improvements, and their duty to do so, in the event they found rents owing by the defendant, was error because it had the effect of not submitting that question to the jury, and because the undisputed evidence showed some amount of rents was owing by the defendant. While the petitioner testified that the house in which the defendant lived would rent for about $8 a month, he did not testify that the defendant had agreed to pay any rent, or that the defendant was liable for any rent. The prayer was for cancellation of the deed, recovery of the property, and for process. "Where in a civil case the judge, in stating the contentions of the parties, fully and fairly submitted the issues raised by the pleadings in the case, the failure of the court, in the absence of a request, to instruct the jury upon a contention of one of the parties not raised by the pleadings, though supported by some evidence in the record, is not cause for a new trial. Martin v. Nichols, 127 Ga. 705 (2) (56 S.E. 995); Cordele Sash c. Co. v. Wilson LumberCo., 129 Ga. 290 (2) (58 S.E. 860); Hewitt v. Lamb,130 Ga. 709 (2) (61 S.E. 716, 14 Ann. Cas. 800)." McLean v.Mann, 148 Ga. 114 (2) (95 S.E. 985); City of Brunswick v.Glogauer, 158 Ga. 792 (4) (124 S.E. 787); York v.Stonecypher, 181 Ga. 435, 437 (182 S.E. 605); McKaig v.Hardy, 196 Ga. 582, 587 (2) (27 S.E.2d 11); Jones v.Hogans, 197 Ga. 404, 412 (5) (29 S.E.2d 568). Applying the above principle to the pleadings and the evidence, the court did not err, as complained of in the special ground of the motion for a new trial, in failing without request to charge on the question of whether the jury, in the event they found rents owing by the defendant, would have been authorized to allow such rents against the improvements. Furthermore, the court charged: "In fixing the rights of the parties you should take into consideration all the evidence in connection with the benefits that each party has received out of the property, just how the contract was made, and what the consideration of the contract was, and what was the real intention of the parties in the case, and then fix their rights under the rules of law that I have given you in charge."

2. Though conflicting, the evidence was sufficient to support the verdict, which further found $500 in favor of the defendant on account of services rendered an improvements made on the property, and the court did not err in refusing a new trial.

Judgment affirmed. All the Justices concur.