Kemp v. Hammock , 144 Ga. 717 ( 1916 )

Beck, J.

(After stating the foregoing facts.)

1. The' court did not err in overruling the general demurrer to the defendant’s amended answer. While it is alleged in the answer that the defendant went into possession of the lands in controversy under a parol gift, and his amendment shows that the alleged improvements were made upon the lands subsequently to the death of J. A. Hammock, and therefore would not have sufficed to complete an equitable title in him under the alleged gift, nevertheless, when all of the allegations of the answer are considered, notwithstanding the. defendant designated the transfer to him of the land as a gift, the answer alleges that there was a transfer of the property to the defendant for a valuable consideration, — that is, for the support of the grantor and his wife for and during their lives; and these allegations of a transfer to him for a consideration, while somewhat vague and indefinite, are sufficient to withstand a general ■ demurrer, and these allegations of consideration, in connection with the allegations of performance upon the part of the defendant, show a title in the latter.

2. The testimony of a witness, that the wife of the alleged grantor had said that the defendant’s grantor told her that if the defendant would “take care of him his lifetime and her lifetime, the balance was his,” was objectionable as being, hearsay, and should have been excluded upon such-objection duly made.

3. Complaint is made of the following’charge of the court: “I charge you, if you believe from the evidence in this case that the defendant went into the possession of the land in dispute before or on the death of J. A. Hammock, and made valuable improvements in good faith, believing the land belonged to him, and if you further believe from the evidence the widow of J. A. Hammock and Mrs. Kemp saw and knew the defendant was making improvements upon the faith of his ownership, and further believe they made no objection, or failed to put the defendant ripon notice that they claimed an interest in the land, then I charge you the widow of J. A. Hammock and Mrs. Kemp would be estopped from afterwards claiming an interest in the land, and you would be authorized to find in favor of the defendant, provided you believe from the evidence the widow of J. A. Hammock and Mrs. Kemp constituted all the heirs at law of J. A. Hammock at the time of his death.” The exception to this charge is well taken. In the first place, the valuable improvements claimed by the defendant to have been made upon the land were made, as shown by the itemized statement of the improvements, subsequently to the death of the alleged donor, and therefore could not render the gift complete. Thompson v. Ray, 92 Ga. 285 (18 S. E. 59).

4. Further, in the charge just quoted the jury were erroneously instructed that if the heirs of ’J. A. Hammock saw the defendant making valuable improvements upon the land and failed to put him upon notice tüat they claimed an interest therein, they would afterwards be estopped from asserting an interest in the •land. This is not the law. The mere fact that one owning land sees another putting valuable improvements thereon, although the owner may know that the other is doing so in good faith, believing himself. to have title to the land, will not estop the owner from asserting his claim. Georgia Railroad Co. v. Hamilton, 59 Ga. 171 (3); St. Louis Smelting & Refining Co. v. Green, 13 Fed. 208. If the defendant placed the improvements while bona fide in possession of the land under a claim of title, he may set off the value of the permanent improvements thus bona fide placed by him, and have a judgment therefor for the amount of the excess value of such improvements over the mesne profits, in case the jury upon the final trial render a verdict in favor of the plaintiff for the land. Civil Code, § 5587.

The errors which we have pointed out in this charge infect certain other portions of the charge complained of; but it is not necessary to specifically deal with them, in view of what we have said in reference to the charge last quoted. Inasmuch as the case is remanded for another trial upon other grounds, we will not undertake to pass upon the question as to the sufficiency of the evidence to show an agreement to transfer the title to the land in quesion to the defendant upon the consideration that the latter would support the plaintiff’s intestate and the wife of the latter during their lives. Except as pointed out above, there were no errors in the rulings or charges of the court complained of.

Judgment reversed.

All the Justices concur.