Thompson v. Ray , 92 Ga. 285 ( 1893 )

Lumpkin, Justice.

1. The facts appear in the reporter’s statement. It will be observed that the evidence fails to show that Mrs. Thompson was entitled to. the land in dispute under a contract of purchase with the deceased, Mr. Reid. At best, her claim of title rests solely upon a parol gift, accompanied by possession, based upon, a consideration which was meritorious and, perhaps, to some extent valuable. It is well settled law that this, of itself, would not be sufficient to pass title into Mrs. Thompson. It was insisted, however, that under the provisions of section 3189 of the code, she was entitled to the premises because of having made valuable improvements upon the faith of the gift. Although there is evidence to show that some of the materials for the making of these improvements were ordered during the lifetime of Mr. Reid, mid that he knew of this fact, it is admitted that the improvements themselves were not made until after his death. In our opinion, therefore, the gift never became complete. It was within the power of the deceased to revoke it at any time before the improvements were actually made. He could have done this even after the materials for the improvements had been purchased. This being so, Mrs. Thompson could not complete the gift by making the improvements after his death. Inasmuch as it cannot be known that Mr. Reid would not have exercised his undoubted right of revocation before the improvements were made, his estate cannot be bound by anything done which he might have forbidden had he lived. Moreover, it does not appear that, by ordering or procuring the materials in question, any injury resulted to Mrs. Thompson. In no event would her claim of title, under the facts stated, have any shadow of legal merit, unless it had been further shown that, with the knowledge and acquiescence of the deceased, she had incurred some substantial loss because of the gift. We do not, however, confine the principle involved within these narrow lines, but we hold distinctly that the mere procuring of materials would not put Mrs. Thompson’s-claim on any better footing, even if she made it appear that in case she had not used the materials in making improvements on the property in question, she would-have been unable to dispose of them except at a sacrifice. Mr. Reid could have revoked the gift even after she had bought the materials; and although, subsequently to his death, she used the same in making substantial improvements upon the property, she thereby gained no greater right than she had during his lifetime.

2. There was no error in rejecting the answer to the interrogatory referred to in the second head-note, and which is set out in full in the reporter’s statement. It was plainly and manifestly leading. It assumed the existence of a collateral fact of vital importance to the-issue then being tried, and suggested the answer desired and the answer as given necessarily tended to establish incidentally the existence of this fact-. Presumabty, the-objection to the interrogatory as leading was made in writing and- at the proper time, because, in endeavoring to sustain the admissibility of the answer counsel did not make it affirmatively appear,—nor, indeed, was it even suggested,—that the objection was not made as-required by the rule of court which prescribes that no-exception to a written interrogatory, on the ground that it is a leading question, shall prevail unless it be filed with the interrogatories before the issuing of the commission.

3. The verdict was sufficiently sustained by the evidence; no error of law was committed by the court, and the motion for a new trial was properly overruled.

Judgment affirmed.