Wilkes v. Folsom

Hill, J.

(After stating the foregoing facts.)

This case has been twice before this court. Wilkes v. Folsom, 149 Ga. 512 (101 S. E. 185), s. c. 151 Ga. 165 (106 S. E. 98). Error is assigned upon the ruling of the court in overruling the oral motion or demurrer tr the amendment to the plaintiff’s petition, on the ground that the amendment set out a new cause of action. We do not agree to this contention. The plaintiff, in his petition, alleged that he was claiming title to the land in controversy under a deed made by O. S. Wilkes to the plaintiff on June 23, 1917, which was filed for record on June 23, 1917, and recorded on July 2, 1917. On the other hand the defendant, Mrs. Margaret Wilkes, is claiming under a deed from the same grantor, bearing date February 19, 1914, but not filed for record until July 9, 1917, and recorded July 11, 1917. Plaintiff alleged, and his evidence tended to show, that he bought the land from the common grantor without any notice, actual or constructive, of the title of Mrs. Wilkes, one of the defendants. We are therefore of the opinion that the amendment to the petition offered by the plaintiff is not subject to the criticism that it sets out a new cause of action. The cause of action is his title to the land, and the amendment merely offers additional reasons to those set out in the petition as to why the title relied on by Mrs. Wilkes is not only inferior to that of the plaintiff but is void for the alleged reason that at the time her son, C. S. Wilkes, executed the deed to her he was a minor, and that the deed was without consideration; that the deed was given to Mrs. Margaret Wilkes for the sole purpose •of allowing her to-borrow a sum of money at the time on the deed; and that she did not use the deed for that purpose, and therefore it was not valid and effective. This is not setting out a new cause of action; and the court below did not- err in allowing the amendment over the sole objection that it set out a new cause of action. The cases of Ring v. Ring, 112 Ga. 854 (38 S. E. 330), Brand v. Power, 110 Ga. 522 (36 S. E. 53), Christian v. Ross, 145 Ga. 284 (88 S. E. 986), and others of similar import, relied upon by plaintiff in error as supporting the proposition that a new cause of action is set out by the amendment, are not in point.

The first special ground of the motion for new trial complains that the court permitted a witness for the plaintiff, C. S. Wilkes, to testify, over objection, that prior to the time that he sold .this land to the plaintiff, he saw his mother, Mrs. Wilkes, one of the defendants, in order to see if it was satisfactory to her for him to sell this land to the plaintiff. This witness answered that he told his mother about it, and that she said it was all right. He also testified that prior to that time he had made a deed to his mother to this land, and that at that time he was not of age. The objections urged against the evidence was that it was irrelevant and immaterial and prejudicial to the rights of the defendant. There was no evidence to show that the witness told the plaintiff that his mother had said that it was all right for witness to sell the land to plaintiff, and that the latter acted upon such representation in buying the property, and not upon his own judgment. In these circumstances the evidence was irrelevant. McCune v. McMichael, 29 Ga. 312; Stonecipher v. Kear, 131 Ga. 688, 692 (63 S. E. 215, 127 Am. St. R. 248). Hill and Gilbert, JJ., concur specially as to the ruling in this division.

Error is also assigned upon the following charge to the jury: “ The court instructs you, with respect to the law in the case, that every deed conveying land shall be recorded in the office of the clerk of the superior court in the county where the land lies. The record may be made at any time, but such deed loses its priority over a subsequent recorded deed from the same vendor, taken without notice of the existence of the first.” This charge is in the language of the code, and is not erroneous as not applicable to the facts made by the pleadings and evidence, or for any other reason assigned. Civil Code (1910), § 4198.

The court charged the jury as follows: “Possession of land is notice of whatever right or title the occupant has. Possession by the husband with the wife is presumptively his possession, but it may be rebutted. He who takes with notice of an equity takes subject to that equity. Notice sufficient to excite attention and put a party on inquiry is notice of everything to which it is afterwards found such inquiry might have led. Ignorance of a fact, due to negligence, is equivalent to knowledge in fixing the rights of the same parties.” This charge is not subject to the criticism that this proposition of law was not involved in the case, and that it tended to confuse and mislead the jury as to real issue before them. In the absence of any special request, it was not error for the court to fail to charge more fully as to how they should, apply the rules of law given in his„ charge to the -facts of the case.

The charge of the court complained of in the 6th ground of the motion for new trial was error, because based upon evidence which was held in the second division of this opinion to be inadmissible.

As the case goes back for another hearing, we express no opinion as to the sufficiency of tbe evidence to support the verdict.

Judgment reversed.

All the Justices concur. Hill and Gilbert, JJ., concur in the result.