Valentino v. Weil & Co. , 67 Ga. 15 ( 1881 )

Crawford, Justice.

A ft. fa. in favor of Leon Weil & Co. against Steadman & Kries was levied upon the life estate of Mrs. Valentino and one-eighth interest of G. Valentino in a certain lot in the city of Atlanta, as the property of Steadman.

Mrs. Valentino claimed the property, and, upon the trial of the claim, it was found subject to the execution. She moved for a new trial, which was refused, and she excepted.

The grounds of the motion were based on the want of evidence to support the verdict; that the jury found contrary to the charge of the court, and because of an honest mistake made by her in giving in her testimony.

1. The facts of the case as disclosed by the record are, that in August, 1872, the interest of Mrs. Valentino and her son G. Valentino in this property was sold under a ft. fa. against them, and bought by Steadman, the defendant in this execution, and who was the son-in-law of Mrs. Valentino. He took the usual sheriff’s deed to the property. In October thereafter judgment was obtained against Steadman & Kries, and the execution from this judgment was levied on the property. Mrs. Steadman, wife of the defendant, and to whom he had made a deed, filed a claim to the property. When the case was called for trial she withdrew her claim, and then Mrs. Valentino interposed another, and that which brings the case to this court.

Upon the trial she testified that she furnished the money to Steadman with which to pay for the property when it was sold' as hers and her son’s, and gave him no authority to take the deed to himself. That she had always claimed the property under the deed made by Daniel, and under no other, and never claimed the interest of her son therein. Steadman also testified that she gave him the money to buy the property, and that the making of the deed to him was a mistake of his lawyer. Under the Daniel deed the property therein conveyed was to Mrs. Valentino and her children, and her testimony shows that she had seven.

With the foregoing evidence before the jury, were they authorized to find the property subject ? The title thereto was unquestionably in Steadman at the date of the judgment. But it is said that it was there by mistake. The failure to correct it through many years, the making a deed to his wife, her affidavit that the property was hers, the dismissing the claim, the mother following with .hers, the failure to call the lawyer as a witness, known to be a practicing attorney of' the court, and these transactions all occurring between close relations, doubtless satisfied the jury that they were not bona fide, and hence the verdict.

As to its being contrary to the charge of the court, that depended entirely upon whether they believed the evidence — the'charge being that if they did believe it, then Steadman would be only a trustee holding the title for Mrs. Valentino, and it would not be subject. Jurors are sworn to give a true verdict according to law and the opinion they entertain of the evidence produced.

2. The last ground in the motion for a new trial rests upon the fact, that the claimant made an honest mistake as to her interest in the property when she was giving in her testimony as to her interest in the property conveyed by the Daniel deed. The question here made, when analyzed, means, that on the trial of the case she thought that she held a life estate in the property with remainder over to her children, and that the purchase of Steadman referred to the whole property as sold for taxes, whereas the deeds to Daniel and Steadman showed what was conveyed in each. When it is remembered that she had held the property under the Daniel deed for nearly twenty-five years, and the sale to Steadman was made in August, 1872, and that her counsel heard her testimony given in on the trial without calling her attention thereto, that it does not fall within that class of mistakes to which relief will be extended by granting a new trial, but rather under that class in which the court will not relieve a party from the consequences of mere ignorance, inadvertence or neglect by granting a new trial. Graham on New Trials, 187; 10 Ga., 147.

Judgment affirmed.