Wren v. Wren , 199 Ga. 851 ( 1945 )

1. In this State, possession of land is notice of whatever right or title the occupant has, and is not limited, as notice, to what would be discovered by an examination of the public records.

(a) Where one of two tenants in common orally purchased the interest of her cotenant, and thereafter remained in exclusive possession of the land, claiming the entire interest therein, the foregoing rule as to notice may be applied in her favor, as against a subsequent purchaser of the same interest from her former cotenant pending such exclusive possession by her.

(b) Where the cotenants were husband and wife, who, upon separating, entered into an oral agreement to the effect that the wife should have the interest of her husband in settlement of her claim for alimony — held, that the agreement was based upon a valuable consideration, and where the wife, acting thereon, assumed exclusive possession of the property, she, in virtue of these facts, acquired equitable title to the interest formerly owned by her husband.

(c) This being a suit for partition against the wife by one claiming a half interest under a deed from the husband, in which suit she claimed the same interest under an alleged previous agreement as above described, the evidence authorized the verdict as found for the defendant, denying partition.

2. The defendant having in her answer admitted a prima facie case in favor of the plaintiff, and assumed the burden of showing a superior claim, the court did not err in allowing the defendant's attorney to open and conclude the argument.

No. 15281. NOVEMBER 13, 1945. In this suit for a partition, a verdict was returned in favor of the defendant. The plaintiff's motion for a new trial as amended was overruled, and he excepted. The amendment to the motion complained because the court allowed the defendant the opening and conclusion of the argument, in view of admissions in the answer. The same ruling was excepted to in pendente lite exceptions, on which error was assigned in the bill of exceptions.

The petition to the superior court was brought by A. A. Wren against Mrs. R. W. Wren. It was alleged that the defendant and the petitioner were tenants in common of a described tract of land consisting of 15 acres, more or less, in the town of Wrens, Jefferson County. Georgia; that the defendant is co-owner with the petitioner, the defendant owning one-half of said land and the petitioner owning the other half, each being entitled to one half of said property. The petitioner brought into court his title deeds, and prayed their examination and establishment by the court, and the appointment of commissioners for a partition of the land according to statute.

To this petition, the defendant filed an answer as follows:

"I. This defendant claims title to all of the realty set out in the application for partition [describing it].

"II. This defendant admits that this property was bought by herself and her husband, R. W. Wren, and that a deed was executed to them jointly by the heirs of the estate of L. B. Connell; that later R. W. Wren executed a voluntary deed to his son, R. C. Wren; and that applicant later received a deed from R. C. Wren. She admits, prima facie, the applicant has an apparent title to the property. She assumes the burden of showing the contrary.

"III. This defendant says, however, that prior to the execution of either of the deeds mentioned, she and her husband. R. W. Wren, separated, and have since lived separate and apart. Upon separation the question [of] a support in the nature of alimony was raised. The said R. W. Wren, recognizing his legal liability to support defendant, or to pay her alimony upon separation, settled this liability with defendant by giving defendant his one-half undivided interest in said property described herein. The defendant agreed upon such a settlement, took full possession of said realty, paid the taxes thereon continuously since that time, and in all other ways exercised possession thereof.

"IV. This defendant says that the value of the one-half undivided interest in said realty at the time the above-stated agreement was made was worth five hundred dollars. She says that the amount of the value of the alimony which [was] settled was far in excess of this amount.

"V. Acting upon such settlement, defendant has made valuable improvements upon said realty of approximately the value of three hundred dollars.

"VI. Both the said R. C. Wren and the applicant had notice of defendant's rights in said realty as herein related."

The answer prayed: (1) a decree declaring the entire title to the property in question to be in defendant, and that partition be denied; (2) a decree declaring the title to the realty, upon equitable principles, to be in defendant; (3) general relief.

On call of the case for trial, the defendant offered to assume the burden of proof, and claimed the right to open and conclude the argument; the facts regarding this matter, as alleged in the amendment to the motion for new trial, being as follows: "When said case was called for trial, counsel for defendant offered to admit in open court and did admit a prima facie case for petitioner; and defendant assumed the burden of proof, and claimed the opening and conclusion. Counsel for petitioner then and there objected on the ground that the defendant could not make a solemn admission in judicio, and then on the trial deny it; that defendant could not admit a prima facie case, and then contend that she was the sole owner of the premises sought to be partitioned. The court ruled with the defendant, and held that the defendant could admit a prima facie case, assume the burden, and have the opening and conclusion. Movant objected to said ruling and contended and now contends that the same was error, and for this reason a new trial should be granted."

Substantially the same averments were contained in the exceptions pendente lite, complaining of the same ruling. The original motion for a new trial alleged that the verdict is contrary to the evidence and without evidence to support it.

The evidence showed that the defendant, Mrs. R. W. Wren, and her husband, R. W. Wren, acquired the tract of land in 1937, by a deed in which they were both named as grantees, and that under such conveyance they became tenants in common, each owning an undivided one-half interest. Mrs. Wren testified that she and her husband separated in September, 1939; that he left her on September 29, and that as he was "fixing" to leave he gave her the deed and his half interest in the property. She further testified: "As to what reason it was that he gave me that half interest, well he said I could have it in place of suing for alimony, he would give it to me and we would have no court, that was the time that he handed me this deed and turned it over to me. . . Since my husband left I have been continuously in possession of that place. I have been living there ever since. I have done some improvements there. . . As to exactly what Mr. Wren agreed to give me, he gave me the deed to the land and says, ``You can have this rather than come here and sue for a support for you and Edgar;' he just handed me the deed. As to whether I settled with him then and there, I didn't pay much attention to it, for I was sick in the bed, and I just took the thing and stuck it under the pillow. . . I say that what Mr. Wren gave me in the separation was his half interest in the house, and he left a horse that belonged to my boy there, and he left two cows and two hogs, and he divided the plow tools himself, and he sold his share to Mr. Bob Harris and left mine there." Several witnesses testified that the defendant's husband, R. W. Wren, had made statements to them indicating that he had given or intended to give his one-half undivided interest in the property to his wife as support or alimony, and there was also testimony besides that of the defendant herself to the effect that after she and her husband separated she continued to live on the place, being in exclusive possession and claiming the entire interest.

On the other hand, her testimony was contradicted on material issues by several witnesses, including her husband, R. W. Wren, who was introduced as a witness by the plaintiff. This witness testified that he had made no agreement whatever with his wife regarding his one-half interest, but that in December, 1940, he conveyed the same to his son, R. C. Wren. who was then living in Tennessee, and with whom the witness had lived after separating from his wife, the final separation having taken place in May, 1940, as he contended. R. C. Wren deeded the said one-half undivided interest to the plaintiff, A. A. Wren, in September, 1943.

Much other evidence, oral and documentary, was introduced. The evidence for the plaintiff included the two deeds to which reference has just been made, to wit, the deed from R. W. Wren to R. C. Wren, dated December 21, 1940, and the deed from R. C. Wren to A. A. Wren, dated September 24, 1943, the execution of which had been admitted in the defendant's answer. 1. The evidence showed without dispute that R. C. Wren and his wife, the defendant in the partition proceeding, acquired the tract of land as tenants in common in 1937, and thereafter occupied it as a home for themselves as husband and wife, until their separation, which, as the jury were authorized to find, occurred in September, 1939. The evidence further authorized the inference that, at the time of the separation, the husband orally transferred his interest to his wife in settlement of her right or claim to alimony, and that she so accepted it; also that from that time on, she was in exclusive possession of the land, claiming all the interest therein as her own. Under such circumstances, that is, assuming the facts to be as thus indicated, she as a purchaser acquired a perfect equitable title to her husband's interest, and her subsequent possession was notice to all other persons that she held under such claim. As to equitable title, see Code, §§ 30-211, 37-802;May v. Sorrell, 153 Ga. 47 (3). 53 (111 S.E. 810); Long v. Godfrey, 198 Ga. 652 (32 S.E.2d 306); Kemp v. Hammock, 144 Ga, 717 (87 S.E. 1030); Bird v. Trapnell,147 Ga. 50 (2) (92 S.E. 872), As to notice, see Code, §§ 37-116, 85-408; Bell v. Bell, 178 Ga. 225 (5) (172 S.E. 566); Dyal v. McLean, 188 Ga. 229 (2) (3 S.E.2d 571).

"Prior possession of land is not notice to a purchaser. Possession of real property which will charge a purchaser with notice is possession at the time the purchaser obtains his title." Webster v. Black, 142 Ga. 806 (3) (83 S.E. 941). Thus, the issue as to notice depended upon the facts as they were on the dates of the deeds under which the plaintiff claims, and not as the facts were formerly, when Mr. and Mrs. Wren were living together and both were in actual possession as tenants in common.

While the rule may be different in some jurisdictions (see 27 Rawle C. L. 723, § 487), in this State possession of land is notice of whatever right or title the occupant has, and is not limited, as notice, to what would be discovered by an examination of the public records. Bell v. Bell, 178 Ga. 225 (5) (supra);Dyal v. McLean, 188 Ga. 229 (2) (supra).

Apparently this court has never before dealt with the question of notice in a case like the present, where, as the jury were authorized to find, one of two tenants in common orally purchased the interest of her cotenant, and thereafter remained in exclusive possession, claiming the entire interest; but we can see no good reason why the rule as just stated should not be applied in favor of such an occupant. While, as we have indicated, there seems to be some conflict of authority on this question, the following decisions support the view that in such a case possession would be notice: Farmers' National Bank of Bushnell v. Sperling, 113 Ill. 273; Carr v. Brennan, 166 Ill. 108 (47 N.E. 721, 57 Am. St. Rep. 119); Van Gundy v. Tandy 272 Ill. 319 (111 N.E. 1020); Weisgerber v. Wisner, 55 Mich. 246 (21 N.W. 331). On the general subject, pro and con. see 27 Rawle C. L. 722, § 486; 14 Am. Jur. 149, § 84; 66 C. J. 1178, § 1024; 13 L.R.A. (N.S.) 73, 124; 104 Am. St. Rep. 348.

Counsel for the plaintiff in error cite the provisions of the Code, §§ 85-1001, 85-1003, 85-1005, relating to the rights of cotenants. These provisions must be construed in connection with section 85408, supra. Nor does Morgan v. Mitchell, 104 Ga. 596 (30 S.E. 792), support the contrary view as to notice. That was not a case where one tenant in common claimed to have purchased the interest of his cotenant. Moreover, the question was one of title by prescription, and not one of notice to a purchaser. McDonald v. Dabney, 161 Ga. 711 (8), 726 (132 S.E. 547), is also distinguished by its facts from the present case. In that case, there were two occupants, the record title being in one, and an equitable interest being claimed by the other. Compare 27 Rawle C. L. 724, § 488. Here, according to the defendant's evidence, she was the only occupant at the time of the transactions relied on by the plaintiff, and her possession was exclusive and adverse. The Code, § 85-1005, as to actual ouster and express notice of adverse possession would not be applicable, if the husband did actually make to his wife a parol sale of his interest, and thereupon voluntarily surrendered exclusive possession to her.

Even though this was a statutory application for partition, an equitable title could be asserted as a defense. Code, §§ 85-1509, 85-1504; Griffin v. Griffin, 33 Ga. 107.

In what has been said, we have merely assumed that the deeds under which the plaintiff claimed were deeds of bargain and sale, as distinguished from voluntary instruments, since, in the view we have taken, it is unnecessary to analyze the evidence in reference to that question.

The evidence authorized the verdict in favor of the defendant, denying partition.

2. It is contended that the court erred in allowing counsel for the defendant to open and conclude the argument before the jury. This contention was presented both by motion for a new trial, and by exceptions pendente lite. We need not determine which if either method is the proper practice to the exclusion of the other, since we find no error in the court's ruling under either approach.

It is not insisted that the defendant failed to admit in her answer a prima facie case for the plaintiff. Rather the motion for a new trial and the exceptions pendente lite both assert that the defendant did admit a prima facie case, and the insistence is, that the defendant could not in open court admit a prima facie case, and then contend that she was the sole owner of the property.

The answer is, that the plaintiff could admit that under certain deeds the plaintiff was the apparent owner of an undivided half interest as alleged, and then by additional and consistent facts show an equitable title which was superior. The rule does not contemplate that the defendant shall admit an absolute case for his or her adversary; only a prima facie case.Reid v. Sewell, 111 Ga. 880 (2) (36 S.E. 937); Norman v.McMillan, 151 Ga. 363 (3) (107 S.E. 325); Matthews v.Farmer, 154 Ga. 623 (115 S.E. 77); Stiles v. Shedden,2 Ga. App. 317, 320 (58 S.E. 515).

Judgment affirmed. All the Justices concur.