Sutton v. Ward , 195 Ga. 314 ( 1943 )

Cause of action for recovery of interests in property, and for application of equitable remedies, was presented. The evidence authorized the verdict for the plaintiffs. Refusal of new trial was not error.

No. 14404. JANUARY 14, 1943. On April 10, 1926, William J. Sutton executed a will devising to his ten children real and personal property valued at several thousand dollars. His wife died before execution of the will. He never married again, and died on March 24, 1940. Under the will two named daughters were bequeathed $10 each, while the other eight children were to receive a described tract of land containing 226 acres, together with all the personal property of the testator, share and share alike, in fee simple. When the executor offered the will for probate in solemn form the two daughters filed a caveat. After hearing evidence, the ordinary found against the caveat, and ordered that the will "be set up and established as the last will and testament" of the deceased. No appeal was filed. Subsequently the two daughters instituted an action in the superior court against the other eight children. The petition, in addition to the foregoing, alleged as follows: After passing the order finding against the caveat, the ordinary suggested to all the children that the caveators not file an appeal from the judgment in the court of ordinary, that no further litigation be had, and that the property involved be equally divided among the petitioners and the other eight children. The ordinary made the suggestion in open court, believing such solution to be best for all concerned. Seven of the defendants agreed with the petitioners that if the latter would not file an appeal from the judgment setting up the will, the former would give to each of them a one-tenth undivided interest in all the property in lieu of the $10 legacy. On the same day the petitioners and all of the defendants, the eighth having joined them at the time, met at the home of the testator and agreed to the above-stated division, and then and there equally divided the household and kitchen furniture. Without the knowledge of the petitioners the executor conveyed the property to the eight defendants, five of whom in turn conveyed their five-eighths undivided interest to the other three. The three defendants last mentioned, upon a consideration of $5000, executed a timber contract to a third person, who cut and removed all of the pine and poplar timber, thereby damaging petitioners to the extent of $1000. The sales of the land and timber were made for the purpose of preventing petitioners from realizing their interests in the property. They have fully complied with the terms of the agreement; and if the contract is not carried out, it would amount to fraud on the part of the defendants. While the agreement was not in writing, it was made in good faith, and the performance of petitioners' obligation was accepted by the defendants. Petitioners have no adequate remedy at law. There was no indebtedness against the testator's estate. The prayers were (a) that title to a two-tenths undivided interest in the real and personal property be decreed in the petitioners; (b) that they recover $1000 for their interest in the timber, and that this judgment be declared a special lien on the property involved; (c) that the deed executed by the executor to the defendants, and the deed of five of the defendants conveying their interest to the other three, be canceled as a cloud upon petitioners' title; (d) that all of the property described in the petition, both real and personal, be equally divided among the ten children; (e) that the defendants be enjoined from further conveying or encumbering the property; and (f) for general relief. The defendants filed a demurrer, a plea of res judicata, and an answer. On the trial, the demurrer having been overruled and the plea of res judicata stricken, the jury returned a verdict in favor of the plaintiffs. The exception is to a judgment overruling the defendants' motion for new trial. 1. While ground 4 of the motion for new trial sets out certain testimony of a named witness of the trial of the case, and ground 5 states that at the time the testimony was given the witness was honest, but finds upon reflection that he was mistaken, no complaint is made of any ruling in either ground; and consequently no question is presented for decision.

2. In ground 6 it is contended that the testimony of the ordinary "was the deciding factor in the jury's reaching a verdict," and it is insisted that this reversal of his testimony should have great weight in determining the defendants' right to a new trial. An affidavit by the ordinary, to the effect that his testimony was not correct, was attached as an exhibit. The fact that a material witness for the plaintiffs, who at the trial gave direct evidence tending strongly to prove that the defendants entered into the contract, has since the trial made statements under oath that his former testimony was not correct, is not cause for a new trial. Fowler v. State, 187 Ga. 406 (7) (1 S.E.2d 18), and cit.

3. Grounds 7 and 10 of the motion refer to affidavits stating that named defendants were not present when the will was probated. No reason is shown in these grounds why a new trial should be granted.

4. In an affidavit attached to the motion as an exhibit one of the defendants deposed as follows: "That about thirteen years ago, one of his brothers-in-law had a legal difficulty with one of the jurors in said case; that said fact was unknown to counsel for the defendants, and had been forgotten by deponent. That after the trial . . deponent was informed that after the jury retired to consider its verdict . . the juror . . informed the jury about it, going into details, and leaving the impression to the other jurors that all of these defendants were dishonest and unworthy of belief on oath; that after said prejudicial argument by said juror, the real merits of this case were not discussed at length, even though the jurors were tied up for some time before arriving at a verdict." There were no affidavits by the other defendants or their counsel to the effect that they did not know of the conduct of the jurors until after the verdict. This ground shows no reason for the grant of a new trial. Code, § 70-205;Brooks v. Camak, 130 Ga. 213 (3) (60 S.E. 456), and cit.

Ground 8 of the motion further states: "That the court erred in overruling the demurrer filed by the defendants in said case. That the court erred in overruling the plea of res adjudicata filed by the defendants in said case." The record does not show that exceptions pendente lite were filed, and the bill of exceptions contains no assignment of error upon either of the above rulings. "Rulings on pleadings afford no ground for a new trial." Zachry v. Industrial Loan Investment Co., 182 Ga. 738 (5) (186 S.E. 832), and cit.; Dumas v. Thomas, 188 Ga. 90 (2 S.E.2d 915).

5. Ground 9 of the motion is merely elaborative of the general grounds that the verdict is contrary to the law and the evidence. The agreement upon the part of two of the children to relinquish their right to appeal from the judgment ordering the will to probate was sufficient consideration for the contract whereby the other children promised to divide the property into ten shares instead of eight. 17 C. J. S. 463, § 109, note 98. See Smith v.Smith, 36 Ga. 184; Heard v. Palmer, 72 Ga. 178;Lunsford v. Kersey, 191 Ga. 738 (13 S.E.2d 803).

6. The evidence, though conflicting, was sufficient to support the verdict in favor of the plaintiffs, and the judge did not err in overruling the motion for new trial.

Judgment affirmed. All the Justices concur.