Varn v. Bloodworth , 157 Ga. 300 ( 1924 )

Hines, J.

(After stating the foregoing facts.)

We do not think that the instruction complained of in the first ground of the plaintiff’s amendment to his motion for new trial is subject to the criticisms therein made. The language, that “The plaintiff does contend further that he took his mortgage upon the stock of goods, in the presence of Mrs. I. A. Blood-worth,” could not have led the jury into believing that the plaintiff’s contention was that the wife was actually present when his mortgage fropi her husband was executed and delivered. The language, “he took his mortgage upon the stock of goods, in the presence of” the wife, cannot be fairly held to mean that she was actually present and witnessed the signing of the instrument by her husband and its delivery to plaintiff. For the same reason, this charge did not inject into the case the issue whether or not the wife was present when the plaintiff’s mortgage was actually signed and delivered by the husband. Nor did this instruction deprive the plaintiff of his claim of estoppel, based upon the fact that the wife knew of the negotiations between the plaintiff and her husband, which culminated in the execution of the former’s mortgage, that the plaintiff intended to accept his mortgage, believing that the property was unincumbered, and that the wife, under these circumstances, failed to notify the plaintiff of her mortgage. Any infelicity in the language of the trial judge, in stating the contention of the plaintiff, was cured by his subsequent instruction to the jury, that the contentions of each of the parties were set out in the pleadings, and that the jury could look to the pleadings for their contentions.

The really important thing is for the judge to charge clearly and fairly the law applicable to the issues involved. If he does this, his failure to formally state the contentions of a party, or immaterial inaccuracies in his statement of such contentions, will not require the grant of a new trial. Central of Ga. Ry. Co. v. McKinney, 118 Ga. 535 (45 S. E. 430); M., D. & S. R. Co. v. Joyner, 129 Ga. 683 (59 S. E. 902). In Fletcher v. Fletcher, 134 Ga. 368 (67 S. E. 1034), the lack of adjustment was in an instruction of the law applicable to a vital issue in the ease, and not in a charge upon the contentions of the parties.

For the reasons assigned in dealing with the instruction referred to in the preceding division of the opinion, the instruction set out in the second ground of the amendment to the motion for new trial does not require the grant of a new trial.

The judge erred in giving in charge to the jury the instruction set out in the third ground of the amendment to the motion' for new trial. One of the issues in the case was whether the wife’s mortgage was given prior to the execution of the plaintiff’s mortgage. The judge in this charge told the jury that “the mortgage held by Mrs. Bloodworth is older in date than that held by G. W. Varn.” It doubtless was the purpose of the judge to tell the jury that the date inserted in the wife’s mortgage was older than the date of the plaintiff’s mortgage, and that the wife’s mortgage was first recorded. These facts being undisputed, it would not have been error to so tell the jury. Dexter Banking Co. v. McCook, 7 Ga. App. 436 (67 S. E. 113). But the jury might well infer that the judge entertained and expressed the opinion that the wife’s mortgage was the older of the two instruments. If not a judicial expression of opinion on the evidence, it borders on it; but we do not find it necessary to decide this question. This instruction" was clearly erroneous for another reason. It excluded from the consideration of the jury the contention of the plaintiff that the wife’s mortgage was antedated, a fact the existence or non-existence .of which was important in determining the bona tides of the transaction between the husband and wife, and in establishing the wife’s knowledge of the existence of plaintiff’s mortgage when hers was executed and delivered.

Plaintiff complains of the charge set out in the fourth ground of the amendment to his motion for new trial. The error assigned is that this instruction was misleading, confusing, and erroneous in that (a) it was not adjusted to the pleadings and the evidence; (b) it injected into the case an issue not made by the pleadings and evidence, to wit: whether or not the wife was present when his mortgage was actually signed and delivered by the husband; (c) plaintiff did not contend that the wife was present when his mortgage was actually executed and delivered, and his claim of estoppel did not rest on any such premise; (d) it withdrew from the consideration of the jury the plaintiff’s claim of estoppel based on the fact that, while the wife was not present when his mortgage was executed and delivered by the husband, she was present and heard a part, if not all, of the negotiations that culminated in its execution, and failed to inform him of the existence of her alleged mortgage, when she knew that he was about to accept a mortgage on this stock of goods, believing that it was unincumbered; and (e) it was susceptible of the meaning that in order for the wife to be estopped she must have misled the plaintiff by some affirmative statement or overt act.

This instruction was all that the court charged upon the law applicable to the estoppel set up by the plaintiff, except the judge’s statements of the contentions of the parties upon this subject. This being so, this instruction can derive no help or prop from the whole charge. Deficiencies therein are not supplied by the other portions of the court’s charge. It must stand or fall on its merits or demerits. We do not think that this instruction clearly and fully covered the law applicable to the estoppel set up by the plaintiff. In charging the law on this vital and pivotal issue in this case, the judge should have clearly and distinctly instructed the jury, that it was not necessary that the wife should have been present at the time the plaintiff’s mortgage Was executed and delivered by her husband, in order to be .estopped; but that, if she was present when the negotiations were had, which culminated in the agreement of the husband to execute this mortgage and in its subsequent execution, and if she knew of these negotiations and agreement had between her husband and the plaintiff in her presence, and, with such knowledge, failed to disclose the existence of her mortgage to the plaintiff, and permitted him to take a mortgage on the same property upon which she had a mortgage, to secure himself against loss on his indorsements of her husband’s notes, believing that such property was unincumbered, she would be estopped by her silence alone, under these circumstances, from enforcing her mortgage against the plaintiff’s mortgage. The language, “if Mrs. Bloodworth was present at the time Mr. Yarn took his mortgage,” and the language, “if she was not present at the time, she would not be es-topped,” might have impressed the jury with the idea, that, if she was not present when the plaintiff’s mortgage was actually executed and delivered, she would not be estopped; and while we have held that such language in the statement of the contention of the plaintiff on this subject was not so inaccurate as to demand the grant of a new trial, we think its presence in the sole instruction of the court upon this vital point in the case, and the failure of the court to instruct the jury that the silence of the wife under the circumstances above stated would estop her, require the grant of a new trial. Fletcher v. Fletcher, supra.

The instruction complained of in the fifth ground of the amendment to the motion for new trial was erroneous for the reasons: (1) that it improperly put on the plaintiff the burden of showing that it was both fraudulent and antedated, before he could prevail, whereas, if the wife’s mortgage was fraudulent, the plaintiff would be entitled to recover, whether that instrument was antedated or not; (2) that if the wife’s mortgage was actually executed on Jan. 14, 1922, as the plaintiff contends, and if at that time the wife had knowledge of the prior unrecorded mortgage of the plaintiff, she was not entitled to prevail; and (3) that the sole question for the jury to try was not whether the mortgage from 'the husband to the wife was free from fraud, bona fide, and given to secure a debt owed by him to her, there being in the case the question of estoppel which the jury had to try.

The failure of the court to give in charge to the jury the principle of law enunciated in the sixth ground of the amendment to the motion for new trial was error. This was a correct principle of law. Civil Code (1910), § 4419; Bailey v. Lumpkin, 1 Ga. 392; Tinsley v. Rice, 105 Ga. 285 (31 S. E. 174); National Duck Mills v. Catlin, 10 Ga. App. 240 (73 S. E. 418); Allen v. Lott-Lewis Co., 8 Ga. App. 313 (68 S. E. 1073). It was applicable to one of the issues in the case. This being so, it should have been given, even in the absence of a request. Central Railroad v. Harris, 76 Ga. 501 (1b); Phenix Ins. Co. v. Hart, 112 Ga. 765 (38 S. E. 67).

Judgment reversed.

All the Justices concur.