Bridges v. Donalson , 165 Ga. 228 ( 1927 )

IIinbs, J.

When this case was formerly before this court, the judgment of the court below, sustaining a demurrer to the original petition, was reversed. Donalson v. Bridges, 162 Ga. 502 (supra). This was a holding that the original petition set out a cause of action; and it necessarily follows that the trial judge did not err in overruling the demurrer to the petition as subsequently amended, unless the petition was rendered subject to demurrer by the new matter contained in an amendment which was offered and allowed subsequently to the decision referred to above.

The defense of multifariousness is not a favorite of the law. Martin v. Brown, 129 Ga. 562, 568 (59 S. E. 302). The purpose of the petition being to subject the land in controversy, or the interest of the husband therein, to the payment of the wife’s alimony, the petition as thus amended was not rendered multifarious. It prayed for cancellation of the deed from the husband to Bridges, and the subjection of the land thereby conveyed to the payment of the alimony, or for the alternative relief of having the interest of the husband in the unpaid purchase-money of the land subjected to the payment of alimony. While in this amendment the wife alleges that Bridges had promised her husband to pay to her the balance of the purchase-money due, the wife, under the petition as amended, properly construed, was not seeking to enforce such promise, but to subject the balance of the purchase-money due to her husband by Bridges on this land to the payment of her claim for alimony, if the deed to Bridges should not be canceled and the land thereby conveyed subjected to the payment of alimony. As the second amendment was stricken by the court in the judgment overruling the demurrer to the petition as amended, it is unnecessary to determine whether this amendment rendered the petition as thus amended multifarious. The same case may be presented in a dual aspect leading up to the same remedy, or, upon a proper allegation of facts, there may be an alternative prayer without subjecting an equitable petition to demurrer on account of multifariousness. Chamblee v. Atlanta Brewing & Ice Co., 131 Ga. 554, 563 (62 S. E. 1032); National Life Insurance Co. v. Beck & Gregg Hardware Co., 148 Ga. 757 (4) (98 S. E. 266).

Verdicts are to have a reasonable intendment, and are to receive a reasonable construction, and are not to be avoided unless from necessity. Civil Code (1910), § 5927. Verdicts will be construed in the light of the pleadings, the issues made by the evidence, and the charge of the court. Harvey v. Head, 68 Ga. 247; Seifert v. Holt, 82 Ga. 757 (9 S. E. 843). In her original petition the plaintiff sought to have canceled the deed from her husband to Bridges, because her husband was mentally incapable of executing it; to obtain permanent alimony; and to have the land awarded to her for said purpose, or charged therewith. In an amendment she alleged that Bridges had not paid to her husband the full amount of purchase-money called for in said deed; and she prayed that, should said deed not be canceled, she have a judgment in rem against said land for the unpaid purchase-money, with interest, and, should said deed be canceled, that the court appoint a commissioner to sell the land, that the proceeds of the sale be used first for refunding to Bridges the amount he had paid for the land, with interest, less the value of rents received by him, and that the remainder be awarded to her for alimony. The court instructed the jury that before' they could render a verdict for the plaintiff they must find that she was entitled to alimony. The deed from the husband to Bridges discloses that Bridges was to pay for this land $1500, and the evidence showed that he had only paid $1275 on the purchase-money. Properly construed in view of the pleadings, the charge of the court, and the evidence, the jury by their verdict intended to find that the above deed should be canceled because of mental incapacity of the husband to execute it, that the land should be sold, that Bridges be paid from its proceeds the amount which he had paid on its purchase-money, and that the remainder of the proceeds of the sale should be awarded to the plaintiff as alimony. In these circumstances the failure of the jury to find the amount of alimony awarded does not render the verdict void for uncertainty; and the verdict is in accord with the issues involved.

In the second special ground of the motion for new trial, the movant complains that the court refused to exclude from the jury the testimony of a witness for the plaintiff touching the state of the husband’s mind five months after the deed sought to be canceled had been executed. In order to ascertain the grantor’s mental condition at the time he executes a deed, it is permissible to receive evidence of the condition of his mind for a reasonable period both before and after that time. Terry v. Buffington, 11 Ga. 337 (56 Am. D. 423); Adams v. Cooper, 148 Ga. 339 (96 S. E. 858); 32 C. J. 760, § 564, 2. In view of the above principle, the court did not err in refusing to rule out the above testimony.

Counsel for Bridges timely requested in writing the court to give to the jury the following instruction: “The law does not restrict a transfer by a husband of his property, made bona fide and for value, prior to the institution of a divorce suit, but is operative only on conveyances by the husband made during the pendency of such a suit. Nor is there any restriction placed upon the husband’s right to dispose of his property during separation from his wife pending a suit for permanent alimony. I charge you that in the case at bar there is no prayer for divorce, but merely a prayer for permanent alimony, and that there was no restriction upon Donalson’s right to convey the property if you should find that he was mentally capable of so doing.” A request for instruction to the jury must be correct as a whole. It should be perfect in itself, or the court should refuse it. Gardner v. Granniss, 57 Ga. 539 (15); Etheridge v. Hobbs, 77 Ga. 531 (4) (3 S. E. 251). This request was not properly adjusted to the facts of the case, and the language, “Nor is there any restriction placed upon the husband’s right to dispose of his property during separation from his wife pending a suit for permanent alimony,” was too broad, as it excluded the elements of good faith and value. When a suit for divorce and alimony is pending or is prospective, the husband can not dispose of his property to another for the purpose of defeating the recovery by his wife of alimony, if such purpose is known.to the party taking, or he has reasonable grounds to suspect that the husband intends to accomplish this purpose by his conveyance. Gray v. Gray, 65 Ga. 193; Parker v. Parker, 148 Ga. 196 (97 S. E. 211); Donalson v. Bridges, supra.

After a careful review of the evidence we can not say that the verdict is without evidence to support it.

Judgment affirmed.

All the Justices concur.