Wright v. Thompson , 190 Ga. 173 ( 1940 )

1. A ground of a motion for a new trial, assigning error upon the admission of documentary evidence, will not be considered unless the evidence objected to be set forth, either literally or in substance, in the motion itself, or attached thereto as an exhibit. A mere reference in the motion to another part of the record where the evidence may be found is not sufficient.

2. "Trustees and other representatives with custody of papers have ample opportunities to discover defects in the title of property in their care, and are estopped from setting up title adverse to their trust." Code, § 38-117. In the instant claim case, where one who had acted as administrator of an estate asserted title to the property of the estate by virtue of a deed from the decedent, and testified that he accepted appointment as her administrator in ignorance of his legal rights, in that he thought that his title had been killed because the deed was lost at the time, a verdict against the claimant was authorized.

No. 13193. APRIL 11, 1940. On October 29, 1936, Mrs. Florrie Bell Thompson obtained a judgment against Sam W. Wright as administrator of the estate of Mrs. Cora Hendrix, deceased. On February 3, 1937, an execution was issued and levied on described real estate as the property of the defendant in fi. fa. Sam W. Wright individually filed a claim to the land. The trial resulted in a verdict for the plaintiff in fi. fa. The case came to this court on exceptions to the overruling of the claimant's motion for a new trial.

The evidence was substantially as follows: On December 30, 1924, T. P. Hendrix conveyed the land involved in this case to his wife, Mrs. Cora Hendrix, by a warranty deed which recited a consideration of $2000. On the same date Mrs. Cora Hendrix gave her husband her promissory note for $2000, due January 1, 1926, the note reciting that it was given for the purchase-money of the land described in the deed. T. P. Hendrix transferred the note to Mrs. Florrie Bell Thompson, the plaintiff in fi. fa., on January 20, 1928. Mrs. Hendrix died on December 1, 1928, leaving T. P. Hendrix as her sole heir. On February 14, 1929, Hendrix as such heir executed a deed to the land to secure a personal loan of $600 from W. W. Edge. On May 6, 1929, Hendrix was appointed administrator of the estate of his wife, which appears to have consisted entirely of the real estate involved in this case. On December 30, 1930, he purported to convey the land to Sam W. Wright, the claimant, by a warranty deed duly recorded on the same date, which recited that a part of the consideration of the deed was the assumption by the grantee of the $600 debt due to Edge and debts of the estate of Mrs. Cora Hendrix, amounting to approximately $100. T. P. Hendrix died on February 3, 1931, without having fully administered the estate, and in May, 1931, the claimant was appointed administrator de bonis non. In 1932 Mrs. Florrie Bell Thompson as transferee filed suit against Sam W. Wright as administrator of the estate of Mrs. Cora Hendrix, on the $2000 promissory note of Mrs. Hendrix which she gave her husband at the time she received the deed to the land in dispute. This suit resulted in the judgment which is the basis of the levy in the instant case.

The claimant introduced in evidence, as the basis of his claim of title, a deed to him from Mrs. Cora Hendrix, dated November 26, 1928, which recited a consideration of $585; also a promissory note from Mrs. Cora Hendrix to him, dated October 17, 1926, and due October 1, 1927, for $585, reciting that it was given for one half interest in eleven bales of cotton. The claimant testified that he was the nephew of Mrs. Cora Hendrix and T. P. Hendrix, and lived with them for eighteen or twenty years; that he worked for his aunt in 1926, and the note was for his share of the cotton raised on the place that year; and that this note was the consideration for the deed from Mrs. Hendrix. He and his brother-in-law, one of the witnesses to the deed, testified that the deed was delivered to him on the date on which it was executed. The claimant testified, that he did not have the deed recorded because he did not know that it should be recorded; that he took it home and put it in his trunk, and "kept the deed for a good while" before giving it to his uncle T. P. Hendrix; that he asked his uncle about the deed several times, and was assured that the deed was all right; that he searched for the deed after the death of his uncle, but was unable to find it; that he did not find it until about two weeks before he filed the claim in the present case, when he and his sister happened to locate it while looking through some old papers of his uncle; that he asked Mr. Francis Hunter, the attorney who drew and witnessed the deed and whose death occurred before the trial, about his title when he found that his deed was lost, and was advised that his title had been killed by loss of the deed; that he did not mention the deed to any one else, because he believed that his title had been so killed; and that he had been in possession of the land and had worked it as his individual property from the time when he received the deed in 1928 until the present.

The plaintiff in fi. fa. introduced the records in a number of court proceedings, which may be briefly summarized as follows:

(1) A claim to the land in dispute, filed by Mrs. Cora Hendrix on July 17, 1927, after the land had been levied on under an execution in favor of Travelers Indemnity Company and against T. P. Hendrix. (2) Petition by Sam W. Wright to enjoin Robert R. Appeal as executor of the estate of W. W. Edge from exercising the power of sale contained in the security deed from T. P. Hendrix, filed on September 24, 1935, and the answer thereto. The petition was sworn to by Sam W. Wright, and alleged that Mrs. Cora Hendrix died intestate, seized of the property described, leaving T. P. Hendrix as her sole heir; and that Mrs. Hendrix died owing numerous debts, including a note to petitioner for $585, dated October 17, 1926, due October 1, 1927, and an open account to petitioner of $350, both of which were unpaid at the time the deed was executed and had not since been paid. The petition was dismissed by the petitioner on January 28, 1937. (3) Petition by Robert R. Appel, executor of the estate of W. W. Edge, against Sam W. Wright, for judgment on notes of T. P. Hendrix, secured by deed to land in dispute, which the defendant had assumed. Suit resulted in judgment for the plaintiff on November 13, 1937. In his answer the defendant alleged that he had no interest in the land at the time he assumed the payment of the notes, about January 1, 1932, and that the assumption was therefore without consideration. (4) Suit by Mrs. Florrie Bell Thompson against Sam W. Wright as administrator of the estate of Mrs. Cora Hendrix, for judgment on the $2000 note from Mrs. Hendrix to T. P. Hendrix, filed July 5, 1932. The defendant in his answer contended that the note was void, because it represented a sale by the wife to the husband, which had not been approved by the judge of the superior court, and contended also that the transfer was void because it was without consideration. The first trial resulted in a verdict for the defendant. Judgment was affirmed by Court of Appeals, but was reversed by Supreme Court. See Thompson v. Wright, 182 Ga. 380 (185 S.E. 341). New trial resulted in verdict and judgment for plaintiff. (5) Petition by Robert R. Appel, as executor, against Mrs. Florrie Bell Thompson, Sam W. Wright as administrator of the estate of Mrs. Cora Hendrix, and others, to cancel the judgment of Mrs. Thompson against Sam W. Wright, administrator, and for other relief. This suit was dismissed by the plaintiff on September 21, 1937.

There was evidence that Sam W. Wright, as administrator, dismissed his answer to the suit of Mrs. Florrie Bell Thompson, and allowed judgment to be taken in pursuance of an agreement between the parties that his note against Mrs. Cora Hendrix for $585 should share in the proceeds of a sale of the land under the judgment to be obtained in the suit. 1. Complaint was made in the motion for a new trial that the court erred in admitting in evidence, over claimant's objection that they were irrelevant and immaterial, the records of certain of the cases referred to above in the statement of facts. Each ground of the motion, after giving the title of the case referred to, stated that the documents comprising the record in the case "are not recopied here, for the reason that they are fully set out in the brief of evidence," gave the plaintiff's exhibit number of the evidence objected to, and recited that the plaintiff's exhibit was made a part of the motion by reference. No attempt was made to give the substance of the evidence objected to. "A ground of a motion for a new trial, assigning error upon the admission of documentary evidence, will not be considered unless the evidence objected to be set forth, either literally or in substance, in the motion itself, or attached thereto as an exhibit. A mere reference in the motion to another part of the record where the evidence may be found will not suffice."Cordele Sash, Door Lumber Co. v. Wilson Lumber Co.,129 Ga. 290 (58 S.E. 860); Roberts v. DeVane, 129 Ga. 604 (2) (59 S.E. 289); Ford v. Blackshear Manufacturing Co.,140 Ga. 670 (2) (79 S.E. 576); Perry v. Monroe, 150 Ga. 26 (2) (102 S.E. 356); Rainey v. Whatley, 169 Ga. 172 (150 S.E. 95); Brannan v. Mobley, 169 Ga. 243 (5) (150 S.E. 76);Skipper v. Alexander, 172 Ga. 246 (6) (158 S.E. 32). It follows that these grounds are too incomplete to present any question for adjudication.

2. The only question presented by the record is whether there was evidence to support the verdict. The defendant in error contends that the verdict was authorized on the theory that the claimant was estopped from asserting title under the deed which he produced upon the trial. The claimant relied upon a deed from Mrs. Cora Hendrix, an aunt with whom he had lived for a number of years. The deed was dated November 26, 1928, and recited a consideration of $585. Assuming that the evidence was sufficient to demand a finding that the deed was delivered on the date on which it was executed, and was otherwise valid, did the evidence show sufficient facts to authorize a finding that the claimant was estopped from claiming title under this deed? His aunt died five days after she had executed and delivered the deed. The jury were authorized to find that the claimant had the deed in his possession at the time of his aunt's death and for some time thereafter, but that he stood by and allowed his uncle to take possession of the land, first, as the sole heir of Mrs. Hendrix, and later as her administrator. The uncle borrowed money to pay his individual debts, and, acting as sole heir of the intestate, secured the loan by a deed to the land. About two years thereafter the uncle executed a deed to the land to the claimant, the deed reciting that the grantee assumed the loan and some debts of the estate of Mrs. Hendrix. The claimant testified that he turned over to his uncle the deed under which he now claims, after he had kept it for a good while; and it is a fair inference from his testimony that he did not discover its loss until the death of his uncle in February, 1931. The estate of Mrs. Cora Hendrix not having been fully administered at the time of the uncle's death, the claimant was soon thereafter appointed administrator de bonis non of her estate, which appears to have consisted entirely of the land now in controversy. It also appears from the records of several cases in which the claimant was involved either personally or as administrator that he claimed the land as being a part of the estate of which he was administrator. While acting as such administrator he asserted that the note for $585, which he says was the consideration for his deed, had never been paid and was a debt of the estate. He obtained an agreement from the attorneys who obtained the judgment upon which the levy in the instant case is based, that this note should share in the proceeds from the sale of the land. Having found the lost deed among papers of his uncle, he filed a claim to the land.

"Trustees and other representatives with custody of papers have ample opportunities to discover defects in the title of property in their care, and are estopped from setting up title adverse to their trust." Code, § 38-117. See Scott v.Haddock, 11 Ga. 258; Benjamin v. Gill, 45 Ga. 110;Hardeman v. Ellis, 162 Ga. 664 (4) (135 S.E. 195);Gammage v. Perry, 29 Ga. App. 427 (116 S.E. 126). The claimant contends, however, that this rule should not be applied in this case, because he did not know at the time he was appointed administrator that he had title to the land. He testified that he believed that when he lost his deed his title had been killed, and stated that he had been so advised by the attorney who drew and witnessed the deed and who had died before the trial. Under his testimony, he acted with full knowledge of the facts, but under a mistake of law as to his legal rights. This testimony was not sufficient to demand a finding that he was not estopped. In fact, to have so found would have been contrary to the obvious purpose of the above-quoted Code section, which is to prevent one who has assumed a position of trust from thereafter asserting title to the property in his care, the knowledge of which asserted title he may have learned by reason of his position of trust. We have assumed that the evidence was sufficient to demand a finding of delivery of the deed involved in the instant case; but if we hold the claimant is not here estopped, will it not open the gate for any trustee or administrator to use knowledge obtained by reason of his position to assert title adverse to his trust? In the instant case every act of the claimant before the finding of the deed was inconsistent with the existence of the deed, even during the time before the deed was lost. If the deed had never been delivered and was therefore void, might not the testimony have been the same? Application of the Code section prevents any such uncertainty. We think it better that some innocent person should suffer by reason of his negligence or ignorance of the law than that the gates be opened for such possible fraud. In Allen v.Solomon, 54 Ga. 483, where a father, after the death of his wife, was appointed, on his application, trustee to hold certain real estate in trust for his children, and accepted the trust, and continued to act as such trustee for several years, when he filed a bill setting up that the property was in fact his, this court held that the trial court did not err in refusing to charge the jury that if the plaintiff accepted the trust in ignorance of his legal rights, he was not estopped from setting them up. It was pointed out that he knew the terms of both the trust instrument and the instrument under which he claimed title at the time he accepted the trust; and it was held that his ignorance of his legal rights did not prevent him from being estopped. The asserted ignorance of the claimant in the instant case as to his legal rights was likewise insufficient to prevent an estoppel.

It is also contended that the claimant obtained title to the land by adverse possession of the land for seven years under color of title. There is no merit in this contention. Clearly the jury were authorized to find from the evidence that the claimant had been holding possession of the land as administrator, and not as an individual. It is true that he was claiming it as his when the levy was made, but his sworn pleadings in other cases were sufficient to rebut any inference that such possession had been for the requisite seven-year period. The evidence authorized the verdict, and the court did not err in overruling the motion for a new trial.

Judgment affirmed. All the Justices concur.