Woodward v. Gates , 38 Ga. 205 ( 1868 )

Brown, C. J.

It was competent for 'the witnesses to give their opinions, accompanied by the Hots upon which it was predicated, as to the whole number of acres from which the timber had been cut by Woodward, the value of the land before and after it was cut, the proportion which the timbered land bore to the cleared land on each tract, and the like. But it was error in the Court to permit the witnesses to give their opinions that the estate of the remainder-men had been damaged a certain amount by the acts of the life-tenant. The amount of damage, if any, was the very “ question to be found by the jury. It was the conclusion to be drawn from all the facts given in evidence. It was the province of the twelve jurors, after weighing all the evidence, to form that opinion, or diaw that conclusion, and not the province of the witness. 10 Ga. R., 529.

2. We do not think the complainant by his bill waived the answer of the defendant in this case. It is true he states he is able to prove the allegations of the bill without the answer of the defendant. This may be true, and he may still have a right to insist on the answer. If the bill were for discovery only, and it contained this statement, he might not have a right to maintain it. But, having alleged other equitable grounds for the interference of a Court of Chancery, and having obtained a status in that Court, he has a right to the answer of the defendant, unless he specially waives it. Section 3046 of the Revised Code provides, that a party seeking relief, may waive discovery; and in such case the defendant's answer is not evidence. Section 4136 declares that defendant need not verify his answer, if discovery is specially disclaimed. The mere statement that the complainant is able to prove the allegations contained in his bill, is not such special disclaimer as the Code contemplates.

3. When the answer is specially disclaimed, it is not evidence for the defendant. But like any other pleading, it is an admission of record, so far as it contains statements or allegations favorable to the complainant, who is not held to prove any fact admitted by the answer. If, however, the complainant insists on the answer as an.admission of record, he must take it as a whole; and he will not be permitted to insist on the admitted fact, to the exclusion of any qualifications or explanations accompanying it.

4. We are satisfied the charge of the Court was too sweeping as to the forfeiture of the estate by Woodward. The evidence of waste in this case, related mainly, if not entirely, to a period anterior to the adoption of the Code, (first January, 1863.) Prior to that time there was no law in this State which operated a forfeiture of the life-estate by the commission of waste. The life-tenant was liable for the damage done, but not to the forfeiture of the life-estate.

This question was decided by this Court in the ease of a widow, who had a life-estate in dower, and had committed waste, in Parker et al. vs. Chambliss, 12 Ga., 235. In that case the question was whether the widow, the waste being admitted, did not forfeit her estate under the statute of Gloucester, and the Court held that she did not. They ruled that the statute of Gloucester was of force under our adopting statute, so far as it makes a tenant-in-dower liable for waste committed, but they rejected the harsh and penal remedy provided by the statute. We concur in this view. The State of Georgia has her own system of penal laws, and we see no reason why an English statute may not be held to have been applicable to our condition, when our adopting statute was passed, so far as rights are concerned, and inapplicable as to the harsh penal remedies given by if..

The learned Judge delivering the opinion in the case of Dickinson etal. vs. Jones and Thornton, 36 Ga., 97, seems to hold that the statute of Gloucester is of force in this State, without qualification. But this is obiter, as the only question before the Court was, whether the Court below erred in refusing to grant an injunction to stay waste, in the case made by the bill. And by reference to the report of the ease, we find it distinctly stated that the complainants prayed an “injunction against the acts of waste aforesaid,” without restricting the proper use of the life-estate. It is evident, therefore, that the question of forfeiture was not before the Court, and no adjudication was made on that point. Indeed, no forfeiture was claimed.

5. We are satisfied that the stringent rules of the English law relative to waste were not applicable to our condition, aud were not adopted in this State. At the time our adopting statute was passed, the country was new; comparatively, a very small part of our lands were in cultivation, the cleared lands were everywhere surrounded by plenty of forest, and timber was considered of but little value. In many cases it was a positive benefit to the inheritance for the tenant-for-life to clear up, and put part of the wild land in cultivation. That which would in England have been very injurious to the estate of the remainder-man, was in Georgia very beneficial. The one was an old country, with a very limited quantity of timber; the other was a new country, covered with boundless forests, where it was difficult to get labor to clear the land and prepare it for cultivation. In England, the felling of the timber by the tenant-for-life worked irreparable injury. In Georgia, it may or may not have injured the estate of the remainder-man; and if it did, the damage could generally be compensated by going a little further to the timber on the wild lands. Under these circumstances, it was reasonable to compel the tenant-for-life to pay the damages done by him to the inheritance, but unreasonable to forfeit the life-estate with treble damages.

At the time the Code was adopted, our condition was materially changed. A large proportion of the timbered land of the State had been cleared and cultivated, and timber was much more an object than it was at the date of our adopting statute. The result was the adoption of a new rule, that in case of waste, the tenant-for-life shall forfeit his interest to the remainder-man, if he elects to take immediate possession. But the rule of the statute of Gloucester as to treble damages is not still adopted. Revised Code, 2229. This section of the Code declares that the tenant-for-life is entitled to the full use and enjoyment of the property, so that, in such use, he exercises the ordinary care of a prudent man for its preservation and protection, and commits no acts tending to the permanent injury of the person entitled in remainder or reversion. In determining what amounts to waste, regard must be had to the condition of the premises, and the inquiry should be, did good husbandry, considered with reference to the custom of the country, require the felling of the trees, and were the acts such as a judicious, prudent owner of the inheritance would have committed? 2 Greenl. Ev., 656; 10 Ga., 321 ; 7 John., 232; 4 Dev. and Bat., 179; 7 Ala., 514.

Judgment reversed.