Harris v. Coats , 1 Ga. L. Rep. 189 ( 1885 )

Hall, Justice.

The material question in this case is, whether the widow of a tenant in common is dowable of lands held jointly, at the time of his death, with another. It was held in Ross vs. Wilson, 58 Ga., 249, that she was, and that partition need not precede the setting aside of the dower; that her legal right being established, she would be entitled to a writ of partition under the provisions of the statute, to have the land divided so as to obtain her one-third part thereof according to valuation; that her legal right to dower at the death of her husband was as perfect before partition of the land as it would have been afterwards ; and that, while such partition did not create or confer the right on her, it was necessary for its enjoyment.

The only objection to the demandant’s right to dower was filed by Harris, the co-tenant of deceased, who alleged that he did not hold in common with the deceased, but was seized and possessed of the land in his own right. On this issue the cause was submitted to the jury, and they found against the objection and in favor of the widow. Harris had the deeds conveying to him title to the land; but whether he had conveyed a moiety thereof to Coats, the deceased husband of the demandant, was the point in controversy. There was ample evidence to sustain this verdict; it was shown that Harris, on repeated occasions, had acknowledged Coats’s right to an undivided half interest in the land, had returned it for taxation for several years as their joint property, and never returned it as solely his own until after Coats’s death. Coats had, with his knowledge^ received a portion of the rents; and shortly after Coats’s burial, Harris went to his residence and demanded an inspection of his papers; when this demand was refused, he persisted in his purpose, saying that there was a paper among them that he intended to have before the sun went down, and asked for the keys of the desk in which deceased kept his deeds and other papers. This request was refused, because demandaht had been informed “ that he meant her no good.” George Coats, a son of deceased and brother-in-law of Harris, came afterwards, spent a night, and obtained the keys ; the desk was removed, and after that, none of the papers it contained could be found. It is fairly inferable that this was done in collusion with Harris. This conduct on his part was sufficient to estop him from denying the elder Coats’s seizin of the land. Wiece vs. Marbut et al., 55 Ga., 613. The case was scarcely doubtful, under the proofs. The verdict was warranted, though not absolutely required, by the evidence.

There was no error in admitting parol evidence to establish the title of deceased to the land, nor in the charge of the court upon that subject.

No diligence was shown to procure the newly discovered evidence, which, at most, was merely cumulative.

There is no error requiring our interference, and the court did not abuse its discretion in refusing a new trial.

Judgment affirmed.