Garbutt v. Mayo , 128 Ga. 269 ( 1907 )

Cobb, P. J.

(After stating the facts.)

1. The motion for.a new trial presents a number of questions. Among them is the question as to whether Mrs. Meadows and Mrs. Mayo have title at all to the land claimed by them. We will first deal with, the question as to whether, under the evidence, Mrs. Meadows has sustained her claim of title. She claims under a deed from her father, C. C. Moseley, dated December 12, 1897. The first attack made upon her deed is that it was never delivered. While the evidence on this question was conflicting, it was sufficient to authorize a finding that there was a delivery. ■ The next attack made upon her title is that the'deed under which she claims was a voluntary conveyance, and therefore the timber lease of the plaintiffs, although subsequent in date to her deed, was superior, for the reason that the grantees therein purchased the timber without actual notice of her title. The evidence was sufficient to authorize a finding that she was in possession of the property claimed by her at the date of the timber lease. This possession was notice to the world of whatever interest she had in the land. Austin v. Sou. Home Asso., 122 Ga. 440. In addition to this there was evidence authorizing a finding that the deed was founded upon a valuable consideration, and that Mrs. Meadows was in no sense a volunteer. Martin v. White, 115 Ga. 866. So far as her claim was concerned, a finding in her favor that she was the owner of the land as against the plaintiffs, who were the holders of a timber lease executed subsequent to the date of her deed and at the time when she was in actual possession of the premises, was authorized by the evidence. She had a superior title to that of the plaintiffs.

2. Mrs. Mayo does not Tely upon a deed to sustain her claim of title. There was evidence that her father had signed a deed to her embracing the premises claimed, but the evidence was not sufficient to establish that this paper was ever delivered. She relies upon a parol gift of the land by her father to her. There was evidence to authorize a finding that there was such a gift, and that, relying upon the same, she went into possession of the property and made valuable improvements thereon, and was in possession at the date of the execution of the timber lease. This gave her a complete equity in the land as against her father, and would have been sufficient to support a decree for specific performance against him. The record does not disclose the exact date at which all of the improvements were mabe, but there was evidence authorizing a finding that a substantial portion of the improvements, if not all. were made prior to the date of the execution of the timber lease by her father to the plaintiffs. If she was in a position at the date of the timber lease to compel a specific performance on his part, the timber lease would be inferior in dignity to her outstanding equity. The claim of Mrs. Mayo does not rest upon the presumption of a gift resulting from exclusive possession by a child for seven years under certain circumstances, as detailed in the Civil Code, §3571, but rests upon the right of specific performance given in §4039, which lays down the rule that where possession of lands has been given under a voluntary agreement, upon a meritorious consideration, and valuable improvements have been made on the faith thereof, equity will decree a performance of the agreement. Bell v. Sappington, 111 Ga. 391. In the first case, where a presumption of a gift arising from exclusive possession of land is relied on, the claimant must show possession for seven years, while in the latter case the length of the possession is immaterial. The fact that there was a gift of land and valuable improvements erected on the faith of this gift completes the equity, without reference to the time that may have elapsed between the taking possession of the land and the erection of the improvements. That is to say, a complete equity, which is, for many purposes, the equivalent of a legal title, depends upon the erection of valuable improvements and not the duration of the possession. If Mrs. Mayo went into possession in 1895, and had erected valuable improvements upon the faith of the parol gift of her father before the timber lease to the plaintiffs was executed, her equity in the land was complete, although only a space of three years had elapsed.

3. It is said, though, that even if it be established that both Mrs. Mayo and Mrs. Meadows acquired title from their father to the respective tracts of land claimed by each, and the plaintiffs were charged with notice -of that title by the fact that these defendants were in possession of the land at the time that the plaintiffs received their timber lease, the defendants' are estopped from setting up title as against the plaintiffs’ lease, for the reason that at the date of the death of their father there was a balance due on the purchase-money of the timber, amounting to several thousand dollars, which was paid by the plaintiffs to his executor, and distributed by the executor among the heirs at law, and that Mrs. Mayo and Mrs. Meadows each received a portion of such purchase-money. The judge charged the jury that if Mrs. Mayo and Mrs. Meadows received from the executor a portion of the purchase-money for the timber, with knowledge of the fact that it was such purchase-money, they would be estopped from asserting their title to the timber as against the plaintiffs. Error is assigned upon this charge, because the judge used the word “knowingly,” in reference to the receipt from the executor of the money which had been collected on the purchase-price of the timber. We think the rule as laid down by the judge is correct. Whatever may he the right of the plaintiffs to require an accounting, as against the defendants who have received the purchase-money of the timber to which they now assert title as against the plaintiffs, so as to ascertain the amount of such purchase-money that has been received by them, and recover the same, there is no estoppel. The defendants would not be estopped unless it appeared that they knew, at the time they received the money, that it was a portion of.the purchase-money of the timber upon the land claimed by them. If they permitted their father to sell their timber, or if-he sold it without their permission, and, with full knowledge of the fact that he had dealt with it as his own, they received the proceeds of the sale of the timber which was upon their lands, they could not, in good conscience, withhold from the purchaser the timber and also retain the purchase-money. But if, at the time they received the money, they were ignorant of the fact that it was a portion of the purchase-money, while they might be liable to account to the plaintiffs for the money so received, they would not be estopped from asserting their title to the timber. They could not knowingly accept the purchase-price of the timber on their land and then say that the transaction, by virtue of which their father, or his executor, had received it, was unauthorized and not binding upon them. Neither equity nor good conscience would permit them to repudiate the transaction and at the same time take from the plaintiffs the substantial benefits. If they did not have knowledge of the facts, they would, upon proper pleadings, be liable to account for so much of the value of the timber on their lands as was received by them, with interest thereon.

There was nothing in the pleadings or in the evidence in this case authorizing or requiring an accounting. The defendants set up their title. The plaintiffs asserted an estoppel. Whether the estoppel was operative depended upon whether the defendants had knowledge and the evidence authorized, even if it did not demand, a finding that there was no knowledge of the facts at the time the defendants received the purchase-money from the executor. See, in this connection, Lamar v. Pearre, 90 Ga. 378 (5); Smith v. McWhorter, 123 Ga. 287 (4); DeVaughn v. McLeroy, 82 Ga. 688 (4); Deford v. Mercer, 24 Iowa, 118 (92 Am. Dec. 460); Knutson v. Vidders, 102 N W. 433. The defendants were not estopped from asserting their title, but in equity and good conscience they can not hold the land and the proceeds of the sale. If they assert their title to the land, they are liable to account to the plaintiffs for whatever sums, representing the purchase-money of the timber on their land, were received by -jhem .from the executor. They say they did not know that they had ever received any of this purchase-money. The plaintiffs assert that the executor and defendants received the balance due on the purchase-money. The burden was therefore upon the plaintiffs to establish their claim for the amount that, in equity and good conscience, the defendants were liable to them. Nowhere in the pleadings or evidence does there appear anything to indicate what this amount would be; and whatever may be the rights of the plaintiffs, in another suit, in reference to the amount so received, the judgment in the present case will not be reversed in order to allow an accounting, when no claim for an accounting was set up by the plaintiffs in their suit. The plaintiffs simply attempted to estop the defendants. In this effort they have failed. Their right to call for the return of whatever sum may be, in equity and good conscience, due to them from the defendants, growing out of their title to the timber having been defeated by the defendants’ assertion of title, must be left to be determined in another proceeding, upon proper pleadings. In Lamar v. Pearre, supra, the judgment was reversed, and the court practically directed that upon another trial an accounting should be had. If the judgment were reversed in the present case, such direction would be given; but the judgment will not be reversed merely for the purpose of having an accounting. Nothing in the judgment in the present case will prevent an accounting, as the issue now determined involves simply the question of estoppel.

4. But it is said that the defendants were seeking equitable relief against the plaintiffs, and that therefore they must do equity, ■and that it was incumbent upon them to ascertain the amount of the plaintiffs’ money that ..they had received, and tender it back before they could obtain a decree in their favor. While the plaintiffs have resorted to a court of equity to obtain relief against the ■defendants, the defendants are entitled to defeat the claim for equitable relief, by showing that the plaintiffs have no title to the property, but that the title is in the defendants. That is to say the defendants may assert their legal title as against the plaintiffs’ equitable claim. The defendants are not the movants in the matter. They have not appealed to a court of equity for relief. They ■relied upon their legal title to defeat the plaintiffs; and, in order to secure the benefit resulting from their ownership, it is not incumbent upon them to do anything more than to establish that they are, in law, the owners of the property. It is not incumbent upon them, in the assertion of their legal title to the property, to do anything more than to establish the fact that the legal title in them exists. So far as their assertion of title is concerned, they, are seeking no equitable relief whatever against the plaintiffs. It is true that they filed an answer in the nature of a cross-bill, in which they prayed an injunction, and the principle that the plaintiffs invoke would be applicable so far as that portion of the answer is concerned; and if this principle had been invoked before the judge on the application for injunction, the judge, no doubt, would have recognized the same and refused to grant the injunction until they had recognized the equitable right of the plaintiffs to the money, whatever amount it may have been that they had received from the executor. But the injunction was granted, and no exception has been taken to that ruling. The case, at its present stage, does not involve any part of the answer which calls for equitable relief on behalf of the defendants. The time for final hearing had arrived, the plaintiffs asserted title to the property, the defendants denied this and set up title in themselves, and this was the only issue submitted to the jury. The defensive part of the answer involved the question of title. The answer in the nature of a cross-bill, it is true, prayed for equitable relief, and this ■equitable relief would be dependent upon the defendants doing equity; but the right of the defendants to rely upon the defensive portion of their answer which sets up a pure legal defense was not «dependent upon any principle of equity. In the case of Charleston Ry. Co. v. Hughes, 105 Ga. 1, the maxim that “he who asks equity must do equity” was applied for the reason that the plaintiff was seeking the aid of a court of equity to obtain the relief desired; and in such cases the maxim is always applicable, whether the relief in that court be legal or equitable. In this case the defendants were asking no equitable relief, so far as their assertion of title was concerned, and the maxim, while applicable to the answer in the nature of a cross-bill, was not applicable to that portion of the answer which was purely defensive.

5. Complaint is made that the court charged the jury that before the plaintiffs could recover, it was incumbent upon them to prove and establish, by a preponderance of evidence, the cause of action set out in their petition, and that if they failed to do so, they would not be entitled to recover. While this is conceded to be a correct statement of the general rule, it is claimed that it was prejudicial .in the present case, for the reason that the attorney for the defendants was permitted to argue to the jury that the plaintiffs could not recover unless they proved damages as laid in their petition. While no extract from the charge of the judge is set forth, in the several grounds of the motion relating to the subject above referred to, other than the one above-mentioned, it is alleged in the motion that the court submitted the case to the jury on the theory that unless the plaintiffs proved the damages as laid in the petition, they were-not entitled to recover; thereby depriving the jury of the right to pass upon the ownership of the timber. The entire charge of the-judge is in the record, and, at its very outset, he distinctly states to the jury that the issue to be determined by them is whether or' not, under the timber lease, title to the timber passed, or whether the title is in the defendants. While we can not tell, from the-grounds of the motion, exactly what transpired during the trial,, as to the argument made, to which objection was urged, it does, appear, from the charge, that the only issue submitted to the jury by the judge was the one above referred to. The charge, being the last expression of the judge in reference to the issues submitted, must be taken as conclusive of what were such issues; and the jury, as intelligent persons, must have understood that no matter what happened during the progress of the trial, the judge submitted to them only the issue contained in the charge.

The motion contains numerous assignments of error upon the-instructions of the judge,, but the questions thus raised are all embraced in the discussion in the foregoing divisions of this opinion. Two of the grounds of the motion for a new trial relate to objections to evidence. The evidence objected to is not set forth in the grounds, and, of course, these can not be considered. The charge of the judge, when taken in its entirety, fairly submitted the issue of title to the jury, which was the only question then before them. The evidence authorized the verdict, and no sufficient reason has been shown for reversing the judgment.

Judgment affirmed.

All the Justices concur.