Opinion
14812.
MAY 8, 1944.
Equitable petition. Before Judge A. L. Etheridge. Carroll superior court. December 28, 1943.
J. L. Smith and Willis Smith, for plaintiff in error.
J. Lon Duckworth and Boykin Boykin, contra.
1. Where a petition was not challenged in the trial court by demurrer or otherwise, and a verdict was returned for the plaintiff, a complaint by the defendant in a motion for new trial that the verdict is contrary to law and the evidence does not authorize this court to pass upon any question as to the sufficiency of the petition to state a cause of action.
2. In the instant case the direct and circumstantial evidence was sufficient to authorize the verdict for the plaintiff as to count 2, wherein the plaintiff sought the cancellation of a stated deed upon the ground, among others, that it had never been delivered.
3. There was no evidence to support the verdict as to count 3, as originally drawn, wherein the plaintiff sought the cancellation of a second deed upon the grounds, that the defendant falsely represented to the plaintiff that a named bank would not make a loan to a woman in the health that the plaintiff "was then in," and promised that, after he had obtained a loan for her benefit on the basis of this deed, he would reconvey the property to her; and that the deed was void for the further reason that no consideration was paid for the same.
( a) Even if the evidence was sufficient to show that the representation was made as alleged, and that the defendant was a party thereto, there was no evidence of its falsity. Nor was it shown that the deed was without consideration.
( b) Under the theory presented by the petition, proof of the oral promise without more, would not authorize the relief of cancellation as prayed.
4. Nor was a verdict for the plaintiff authorized upon any of her amendments, wherein she alleged that the property in question had been set apart to her as a year's support, and that the deeds to the defendant were not made for the purpose of obtaining such support, since it appears from her own testimony that the deed were not invalid as having been made for any other purpose.
5. The evidence authorized the verdict for the plaintiff on count 1, in which she sought an injunction to restrain the defendant from interfering with her tenants and her possession. Even though the evidence did not authorize a cancellation of the second deed, this deed nevertheless reserved to her a life-estate in the property, entitling her to possession.
6. This court will not review a ruling of the trial court refusing to grant a nonsuit, where, after a verdict for the plaintiff, the defendant moved for a new trial on the grounds that the verdict was contrary to the evidence and without evidence to support it, and excepted to a judgment overruling such motion.
7. In the circumstances shown by the record, there is no merit in any of the objections to a statement made by one of the plaintiff's attorneys, in the presence of the jury, to the effect that he was authorized to say that the holder of the loan deed and note, who was also a party to the case and was represented by such attorney, would relieve the defendant from all personal liability and look only to the property.
8. The verdict for the plaintiff on counts 1 and 2 being authorized by the evidence, and no error as to these counts being shown, and the issues presented by the three counts being separable, the judgment refusing a new trial is affirmed as to counts 1 and 2, but is reversed as to count 3, upon which the verdict was unauthorized.
No. 14812. MAY 8, 1944.
In December, 1938, Mrs. Emma Lou Grice filed a suit in equity against J. L. Grice, seeking an injunction and the cancellation of two deeds. The original petition was in three counts, to each of which an amendment was allowed. The defendant filed an answer to each count, and later filed an amendment and cross-action, praying that Rufus Pritchett be made a party defendant, and for an injunction against him. At the trial, in October, 1943, the jury returned a verdict for the plaintiff on all three counts, specifically designating them, on which the court entered a decree cancelling the deeds as prayed in counts 2 and 3, and permanently enjoining the defendant as prayed in count 1. The defendant filed a motion for new trial, which, after amendment, was overruled, and he excepted. The original motion was based on the usual general grounds. The amendment contained two special grounds, one complaining of a statement by one of the plaintiff's attorneys in the presence of the jury, the facts touching which are more fully stated in the opinion; and the other complaining of a refusal to grant a nonsuit.
Count 1 alleged that the petitioner is the owner of a described tract of land in Carroll County, consisting of about 185 acres; that the defendant is continually hounding her tenants to move from said premises, and is constantly endeavoring to rent said property to other people, all without any right; that she depends on renting said property for a living, and if the defendant is permitted to continue to harass her tenants, they will vacate the property, and she will be without an income and will suffer irreparable loss; that she is without an adequate remedy at law, and seeks the aid of a court of equity to prevent the defendant from interfering with her quiet and peaceful possession of said property. She prayed that the defendant be restrained and enjoined: from entering upon said premises; from communicating, either directly or indirectly, with her tenants; from attempting to rent said property to other people; from interfering in any way whatever with her possession of said property; and for process.
Count 2 alleged: That the petitioner is the owner of a described tract of land in Carroll County (the description being the same as in count 1); that on January 2, 1933, she executed a warranty deed to the defendant, said deed having been recorded on March 20, 1936, a copy of which was attached to the petition as an exhibit; that said deed was never delivered to the defendant, but that he obtained possession of it in some way unknown to her and placed it of record more than three years after the date of its execution, and is now claiming title to said property by reason thereof; that there is no consideration for said deed, the same was never delivered, and title never passed to the defendant thereunder; that the deed is void, but constitutes a cloud upon her title to the property, and she is entitled to have the same canceled of record. She prayed that said deed be declared null and void; that the defendant be ordered to surrender up same and cancel it of record; that she have such other and further relief as she might be entitled to in the premises; and for process. According to the copy attached to this count, the deed purported to convey the entire estate in the land therein described, without condition or reservation; recited a consideration of $5; contained an attestation clause reciting delivery; and was executed in the presence of two witnesses, one being James Beall, who attested the same as a commercial notary public.
Count 3 alleged that the petitioner is the owner of a described tract of land (being the same land referred to in the preceding counts); that on July 1, 1933, she executed a warranty deed to the defendant and delivered it to attorney Harvey Beall, a copy of the deed being attached to the petition, showing that it was recorded on the day it was executed; that this deed contained the following clause: "It is agreed and understood that Mrs. Emma Lou Grice is to have a life-estate in the above property as long as she may live;" that it was executed and delivered to said Harvey Beall upon the representation by him and by the defendant that it was necessary for said deed to be executed and placed of record, in order that the Federal Land Bank might grant to the petitioner a loan in the sum of $2000, which she applied for; it being represented to her that said bank would not make a loan to a woman in the state of health she was then in; that she executed said deed upon the representations above set out, and upon the promise of the said Harvey Beall and the defendant that when said loan was obtained from the Federal Land Bank, the defendant would reconvey said property to her; that said deed was void for the reason that no consideration was paid for the same, and for the further reason that the representations as to the Federal Land Bank requiring said conveyance as a condition precedent to making said loan was not true, although she believed the same to be true, and acted upon the same; that at the time of executing said deed, she was in feeble health; and the defendant being her nephew, she had confidence in him and relied implicitly upon his representations thus made; that he now refuses to reconvey said property to her, and unless a court of equity intervenes and declares said deed null and void, the same will constitute a cloud upon her title, and she will be without an adequate remedy to remove the same. She prayed that the deed be declared null and void, and ordered surrendered and cancelled; and for process. This deed, like the previous deed, recited a consideration of $5.
In an amendment to count 1, it was alleged that the property in question had been set apart to the petitioner as a twelve-months support at the November term, 1928, of the court of ordinary of Carroll County, and that the defendant had not furnished the petitioner support, and had not paid her any consideration for the property which was or could be used by her for a support, in that he has not paid any consideration whatever for said property. In an amendment to count 2, it was alleged that the property had been set apart to the petitioner as a year's support; and that the deed to the defendant was not made for the purpose of obtaining support, nor for obtaining funds to be used for support, and was not executed for any consideration whatever, and therefore was void, and she prayed that it be declared void, upon the ground that it was executed without consideration, and was not made for the purpose of obtaining support as contemplated by law. An amendment to count 3 was substantially the same as the amendment to count 2.
The defendant's original answer to count 1 denied the material allegations of the petition, and asserted title in the defendant. In answer to count 2, he denied the allegations as to want of consideration and nondelivery of the deed in question, and further alleged that this deed was made to him because the plaintiff was badly involved and could not pay her debts, and insisted that she make a deed to him and let him assume and pay her debts; that she made the deed to him voluntarily, and he obtained a loan on the property, paid the indebtedness, went into possession, and had title to the property. He also alleged that said deed, that is, the deed of January 2, 1933, "was delivered to him at the time it was executed; that later on the plaintiff executed another deed with some kind of reservation of a life-estate therein; and that that deed was never delivered to him until after the loan was obtained; and that he was only acting upon the advice of counsel representing the Federal Land Bank." In answer to count 3, he denied the material allegations contained in this count, and made affirmative averments as to obtaining the loan, and as to his claim of title and right of possession, subject to the loan of the Federal Land Bank.
In an amendment and cross-action, filed in February, 1942, the defendant alleged that the security deed and notes executed by him to the Federal Land Bank had been transferred to Rufus Pritchett, who was then advertising the property for sale; and also alleged, among other things, that the property was not being advertised for the time required by the security deed; and prayed that, in order to avoid multiplicity of suits, Pritchett be made a party defendant and enjoined from selling the property until further order of court. It appears from the record that on February 28, 1942, Pritchett was temporarily restrained as prayed, and that the restraining order was still of force at the time of the trial now under review.
Only two witnesses testified, the plaintiff and the defendant, the latter having been placed on the witness-stand by the plaintiff for the purpose of cross-examination. The evidence given by these two witnesses is discussed in the opinion, and need not be set forth in the statement of facts. Both deeds were introduced in evidence, and it appeared from the deed of January 2, 1933, that it was first written on a typewriter, and described the land as containing 150 acres of lot 61, 35 acres in lot 68, and 1 acre in lot 60, in the 11th district; but that it was later changed in handwriting so as to state that it contained 149.77 acres of lot 61, 35.45 acres in lot 68, and none in lot 60. It also appeared in this part of the deed that the figures 33.68 and 1.77 had been interpolated by hand, but were later stricken. It further appeared that, immediately after the original typewritten description, the following words and figures were inserted in handwriting:
"It is agreed and ______________
33.68 149.77 1.77 35.45 ----- ------ 35.45 185.22"
1. Counsel for the plaintiff in error, the defendant in the trial court, have cited several decisions to the effect that an absolute deed of conveyance will not be canceled at the instance of the grantor merely because of breach of a promise made by the grantee, in consideration of which the deed was executed, since the remedy in such a case is an action for damages. They say also in effect that there was no evidence of actual fraud, and that for this reason, among others, the verdict was unauthorized. As we view the case, it is not open to a consideration of these questions. Whether actual fraud would be an essential element of the plaintiff's case under the law, the petition did not allege such; nor did the defendant in the trial court, by demurrer or otherwise, invoke any ruling as to whether the petition or any one of its three counts was sufficient to state a cause of action. The jury found for the plaintiff on all counts, and the case is before this court solely upon exceptions to the overruling of the defendant's motion for a new trial as amended, in which the nearest approach to an attack on the petition was a complaint that the verdict was "contrary to law." Under such a complaint, no question is presented as to whether the plaintiff's allegations were sufficient to state a cause of action for any of the relief prayed, and no such question should be determined. As was said by Bleckley, Chief Justice, in Furr v. Eddleman, 80 Ga. 660, 666 ( 7 S.E. 167): "After verdict, there having no question arisen in the court below as to the sufficiency of the pleadings, we are not disposed to scrutinize the declaration further than is necessary to classify it the best we can; and we base our opinion of the case upon the evidence, without much regard to the pleadings. In so doing, we but follow the example of both court and counsel who participated in the trial." In numerous cases, it has been held, in effect, that after a verdict for the plaintiff a complaint in a motion for new trial that the verdict "is contrary to law" does not authorize this court to pass upon the question whether the plaintiff's petition was good against a general demurrer. Mayor, etc. of Griffin v. Johnson, 84 Ga. 279 (6) ( 10 S.E. 719); Roberts v. Keeler, 111 Ga. 181 (6) ( 36 S.E. 617); Henley v. Brockman, 124 Ga. 1059 (2) ( 53 S.E. 672); Harbin v. Hunt, 151 Ga. 60 (3) ( 105 S.E. 842); Nixon v. Nixon, 194 Ga. 301 ( 21 S.E.2d 702); Kelly v. Strouse, 116 Ga. 872 (6) ( 43 S.E. 280); Davis v. Metropolitan Life Insurance Co., 161 Ga. 568 (4) ( 131 S.E. 490); Boswell v. Federal Land Bank, 181 Ga. 258, 259 (4) ( 182 S.E. 1).
A contrary ruling appears to have been made in Goff v. National Bank of Tifton, 170 Ga. 691 (3) ( 153 S.E. 767), but to the extent of such conflict, the latter decision must yield to the earlier unanimous decisions in the five cases first-above cited, beginning with Furr v. Eddleman, supra. See also, as being in conflict, Southern Railway Co. v. Stephens, 23 Ga. App. 200 ( 98 S.E. 176), criticised in Gunn v. Johnson, 29 Ga. App. 610 ( 116 S.E. 921), but cited approvingly in Interstate Life Accident Co. v. Houseworth, 69 Ga. App. 337 ( 25 S.E.2d 233).
What is here said accords with the rulings in Blount v. Metropolitan Life Insurance Co., 192 Ga. 325 ( 15 S.E.2d 413), where the direction of a verdict for the defendants was affirmed on a direct bill of exceptions by the plaintiff, and in Moody v. Moody, 195 Ga. 13 ( 22 S.E.2d 836), where it was held that the finding for the defendant was demanded as a matter of law, and therefore it was error to grant a new trial. Compare Twilley v. Twilley, 195 Ga. 291 ( 24 S.E.2d 41).
2. It appears from the entire record that the plaintiff's right to a verdict on count 1 would depend upon whether she proved the allegations of one or both of the other counts. Therefore we shall defer any ruling as to the evidence under the first count until after we have considered it as applied to the other two counts.
The second count alleged that the deed of January 2, 1933, purporting to convey the entire estate in described land, was without consideration and never delivered. The evidence showed that if this deed was delivered, it was based at least upon an agreement of the defendant that he would obtain a loan thereon for the benefit of the plaintiff, which, without more, would prevent it from being entirely without consideration. Code, § 20-302. The allegation was not that the consideration had failed, but that none had existed.
This brings us to the question whether there was any evidence to authorize a finding that the deed was never delivered. It appears to have been duly attested by two witnesses, one of whom was an official so authorized by law, and the attesting clause recited delivery. This was sufficient to raise a prima facie presumption that the deed was delivered. Ross v. Campbell, 73 Ga. 309 (1 a); Bourquin v. Bourquin. 110 Ga. 440 (4), 446 ( 35 S.E. 710). When the deed was introduced in evidence, it showed that it had been recorded, and this also raised a prima facie presumption of delivery. Mays v. Fletcher, 137 Ga. 27 (2) ( 72 S.E. 408). Furthermore, it was found in the possession of the grantee, and in like manner this raised a presumption of delivery. Code, § 29-105. All three of these presumptions, however, were rebuttable, and it still could be shown that, as a matter of fact, the deed was never delivered to the grantee by authority of the grantor, and proof of such nondelivery could be made by circumstantial as well as direct evidence. Allen v. Bemis, 193 Ga. 556 (2) ( 19 S.E.2d 516); Stinson v. Daniel, 193 Ga. 844 (2) ( 20 S.E.2d 257). It has also been held that mere manual delivery to the grantee is insufficient, unless an intention to surrender dominion is also present. Willingham v. Smith, 151 Ga. 102 ( 106 S.E. 117); Cooper v. Littleton, 197 Ga. 381 ( 29 S.E.2d 606). The plaintiff testified that the reason she made this deed was that she wanted to get a loan, but that the deed was not delivered to the defendant in her presence; that Judge James Beall, who it appears witnessed the deed as a notary public, kept it; that Harvey Beall, since deceased, was present; and that she went "back up there in July," and Harvey Beall drew another deed, which she signed. It could have been inferred that the loan was actually obtained on the second deed, for that deed was executed and recorded on July 1, 1933, and the loan was made in the following August, while the deed of January 2, 1933, being the one here under consideration, was not recorded until nearly three years later. The very fact that the second deed was made for such purpose could have been taken by the jury as a strong circumstance indicating that the first deed was never delivered. Whether or not these facts without more would be sufficient to establish nondelivery, in view of the presumptions above mentioned, the defendant, who was called by the plaintiff for cross-examination, testified to circumstances which, when added to the other evidence, were in our opinion sufficient to authorize a finding that the deed was never delivered. The plaintiff desired a loan, and signed the deed as a step in the direction of having the defendant obtain a loan for her benefit on the basis of this deed, as showing title in him to the security. He did not testify that the deed was delivered to him by the plaintiff, but stated that Harvey Beall, attorney for the land bank, delivered it to him.
The deed as introduced in evidence showed that certain mathematical calculations had been written upon its face before it was recorded, and as to this matter the defendant testified that Harvey Beall said, "I have some figures on there and I will just write another by this." Thus it seems that the deed had been treated by Harvey Beall as being without force, and that for this reason, and in view of the "figures on" it, he wrote another deed. While the defendant testified that, "Harvey Beall wrote the deed in his office, she signed it and she passed it back to Harvey and he gave it to me," he did not state when Beall "gave" it to him, and this was evidently not done until some time later, that is, until Harvey Beall had defaced it by writing the figures upon it; for it was at the time they were "fixing to close" the loan several months later that Beall, after asking him if he had a deed, and receiving an affirmative reply, made the statement, "I have some figures on there, and I will just write another by this." It could also have been found that the calculations related to the quantity of land to be conveyed, and that they were made because of a discovery of errors in the description, and for the purpose of having a correct description, in the event a later deed should be executed. It appears that in the original deed a part of the land was first described as being in lot 60, whereas in the second deed no lot by that number was mentioned. The deed also contained an incomplete sentence, to wit: "It is agreed ____". This it seems would also tend to show that the deed was never delivered, especially in view of the fact that the second deed contained a clause at the same point and beginning with the identical language, the full sentence in the last deed being: "It is agreed and understood that Mrs. Emma Lou Grice is to have a life-estate in the above property as long as she may live." Again, there was some evidence that the second deed, which purported to reserve a life-estate in the grantor, may have been required by the lender in order that the grantor and the grantee would both sign the security instrument and the note, and both thus become obligated for the debt. The defendant's testimony was not so certain, clear, and consistent that the jury were bound to accept it as true, but on the contrary it was of such nature that they were authorized to draw inferences therefrom unfavorable to him. Lewis v. Patterson, 191 Ga. 348 (4) ( 12 S.E.2d 593).
We are of the opinion that the direct and circumstantial evidence, as above discussed, was sufficient to show that the first deed, after being signed by the plaintiff, was left either with Judge James Beall or with Harvey Beall, for delivery to the defendant only in the event a loan from the Federal Land Bank should be obtained thereon; that the deed was later found by Harvey Beall to be imperfect, and for this or some other reason the event of obtaining the loan did not at any time happen as applied to that deed; that such deed came into the possession of the defendant in some authorized manner; and that, if there was not a technical escrow, the grantor still did not surrender control of the deed, so as to perfect delivery. We are thus obliged to conclude that the evidence authorized a finding in favor of the plaintiff on the second count, that is, for a cancellation of the deed of January 2, 1933, as prayed in that count.
3. The third count was based upon the theory that the defendant and Harvey Beall falsely represented to the plaintiff that the land bank would not make a loan to a woman in the health that the petitioner "was then in." and on their promise that when the loan was obtained the defendant would reconvey said property to the petitioner, and upon the additional theory that the deed was void for the reason that no consideration was paid for the same. We are speaking now only of the original petition, and not of the amendments. We will refer to the amendments in division 4, infra.
What has been said in the preceding division as to want of consideration for the first deed will apply with even greater force as to the second deed, since the loan was actually obtained thereon according to the plaintiff's intention. Clearly, this deed was not wanting in consideration.
It appears from the petition that the plaintiff is not relying upon the claimed promise to reconvey as a contractual obligation, for she did not pray either for specific performance or for general relief. However, as to enforceability of such a promise as a contract, see Shapiro v. Steinberg, 175 Ga. 869 ( 166 S.E. 767); Shapiro v. Steinberg, 179 Ga. 18 ( 175 S.E. 1); Stonecypher v. Georgia Power Co., 183 Ga. 498 ( 189 S.E. 13); Guffin v. Kelly, 191 Ga. 880, 887 ( 14 S.E.2d 50); Cottle v. Tomlinson, 192 Ga. 704 (4), 712 ( 16 S.E.2d 555); Ramsey-Fender Motor Co. v. Chapman, 46 Ga. App. 385, 390 ( 168 S.E. 92). She alleged that the deed was void and prayed only that it be so declared and ordered surrendered and cancelled, and for process. Therefore, it seems that, aside from her allegation as to want of consideration, she relied upon the alleged false representation and the oral promise to reconvey, merely as a combined cause for cancellation. Compare Holton v. State, 109 Ga. 127 ( 34 S.E. 358); Castleberry v. Wells, 183 Ga. 328 (2), 335 ( 188 S.E. 349). Under the theory thus presented, proof of the promise without more would not support her allegations or authorize a cancellation. We have carefully examined the evidence for the purpose of determining whether the defendant and Harvey Beall, or either of them, falsely represented that the bank would not make the loan "to a woman in the health your petitioner was then in," and we find no evidence whatever to show such falsity. Thus, even though the evidence may have been sufficient to show that such a representation was made, and that the defendant was a party to it, yet since there was no evidence that the representation was false, as alleged, the verdict for the plaintiff as to count 3 was unauthorized.
4. There was an amendment to each count of the petition alleging that the property had been set apart to the plaintiff as a year's support from the estate of her deceased husband, and that the deed to the defendant was not made for the purpose of obtaining support, nor for obtaining funds to be used for this purpose; but we shall deal first with the amendment as to count 3. In the absence of proof to the contrary, it will be presumed that the deed was made for a proper and lawful purpose. Ragan v. Shiver, 130 Ga. 474 ( 61 S.E. 1); Jones v. Federal Land Bank of Columbia, 189 Ga. 419 (2) ( 6 S.E.2d 52). However, as to this matter, the plaintiff's own testimony refuted her allegations. She testified that her husband died in 1928, leaving sufficient insurance to pay all of his debts; that this property was set apart to her as a year's support; that she later incurred debts in operating the property as a farm; and that the purpose of the deed was to enable her to obtain funds with which to retire these obligations. The evidence thus showed that the deed was made for the purpose of support within the meaning of the law upon that subject, and that in this respect the deed was valid. Morris v. Hasty, 171 Ga. 648 ( 156 S.E. 602); Reynolds v. Baxter, 177 Ga. 849 ( 171 S.E. 706); Whitfield v. Maddox, 189 Ga. 870 (2) ( 8 S.E.2d 57); Harmon v. Gaddy, 193 Ga. 574, 577 (6) ( 19 S.E.2d 302).
What has just been said as to the evidence relating to the amendment to count 3 will apply in like manner to the evidence as related to the other amendments.
5. Under the rulings in the three divisions next proceeding, the verdict for the plaintiff as to count 3 was unauthorized. What, then, may be said as to count 1? If the first deed, purporting to convey the entire estate should stand, there might be some question as to whether the second deed to the same grantee would have the effect of reserving a life-estate. Code, § 29-102; Yaughn v. Harper, 151 Ga. 187 ( 106 S.E. 100); Peppers v. Peppers, 194 Ga. 10 (2) ( 20 S.E.2d 409). However, if the first deed was never delivered, as the jury were authorized to find, then the second deed reserved a life-estate, entitling the plaintiff to possession. Under this theory, the evidence authorized the verdict in her favor for an injunction to restrain interference with such possession.
6. Where, after the denial of a motion for nonsuit, a verdict for the plaintiff was rendered, this court will not review the ruling as to a nonsuit, where the defendant moved for a new trial on the general grounds that the verdict was contrary to the evidence and without evidence to support it, and excepts to a judgment overruling such motion. Accordingly, no ruling will be made as to the refusal to grant a nonsuit, complained of in the second ground of the amendment to the motion for new trial. This is not to imply that such a question could, as a matter of procedure, be properly raised in a motion for new trial. Don v. Don, 163 Ga. 31 (3) ( 135 S.E. 409); Guffin v. Kelly, supra.
7. We consider next the complaint as to the statement of the plaintiff's attorney as set out in the first ground of the amendment to the motion for a new trial. The facts touching this matter are substantially as follows: The statement of the attorney, amplified on interrogation, was to the effect that he was authorized by Rufus Pritchett, holder of the security deed and note, to state that Pritchett would relieve the defendant from all personal liability and look only to the property, — that Pritchett had stated to the attorney that all he wanted was the land or the money, and that anything the attorney might do would suit him. The statement was objected to by counsel for the defendant upon the following grounds: The contract was under seal, and it would require authority under seal to authorize such a statement in behalf of Pritchett; an attorney has no authority to accept less than the full amount of a debt unless he has authority from his client; there was no consideration for the promise by the attorney; that it did not amount to a release, and judgment would be taken against the defendant on foreclosure; and that the statement was prejudicial to the defendant, and was immaterial and irrelevant.
The court, in the first instance, deferred a ruling upon the objection, and again, on being reminded of the matter, after the evidence had closed, stated that he would rule on it later. Assuming that in these circumstances no further renewal of the objection was necessary, we do not think that this ground of the motion was sufficient to show error. The plaintiff's attorney was speaking in a dual capacity. While his statement appears to have been made primarily in the interest of the plaintiff, Mrs. Grice, he was also attorney of record for Rufus Pritchett, for whom it appears he had filed an answer to the defendant's cross-action. Regardless of consideration, Pritchett himself could have stated in open court that he would relieve the defendant from personal liability and look only to the property, and from the facts stated by the attorney, the latter was expressly authorized to say as much for him. Compare Howell v. Howell, 188 Ga. 803 ( 4 S.E.2d 835). The statement was in the nature of a solemn admission in judicio, and a judgment or decree binding upon Pritchett could have been entered accordingly. Code, § 38-114. Nor was the statement irrelevant and prejudicial, as contended. True, it may have had some effect upon the verdict, but this would not make it prejudicial in the sense of the law, if it was not otherwise subject to objection. As to relevancy, while the plaintiff alleged nothing as to having done equity or as to her willingness to do equity, the defendant had just testified on examination by his own attorney: "I have not been released from this note by the Federal Land Bank;" which testimony was evidently given for the purpose of showing that the plaintiff had not done equity; and whether the answer of the defendant as drawn was sufficient to admit evidence as to such issue, it could have been amended so as to make the quoted testimony of the defendant admissible. Napier v. Strong, 19 Ga. App. 401 (2) ( 91 S.E. 579). The defendant having thus injected the issue as to doing equity, the plaintiff could make reply by showing the consent of Pritchett to relieve the defendant of personal liability ( Collins Park Belt R. Co. v. Ware, 112 Ga. 663 (2), 37 S.E. 975; Brown v. Wilson, 55 Ga. App. 262, 189 S.E. 860); and this is true, regardless of whether the evidence might otherwise have been subject to such objection. Williams v. Fouche, 157 Ga. 227 ( 121 S.E. 217); Harton v. Federal Land Bank of Columbia, 187 Ga. 700 ( 2 S.E.2d 62). None of the objections urged were meritorious.
8. Having held that the verdict for the plaintiff on counts 1 and 2 was authorized, and that no error has been shown as to these counts, we see no reason for reversing the judgment as to them. Therefore the judgment refusing a new trial is affirmed as to counts 1 and 2, but is reversed as to count 3. Jeffries-McElrath Manufacturing Co. v. Huiet, 196 Ga. 710 ( 27 S.E.2d 385).
Judgment affirmed in part, and reversed in part. All the Justices concur, except Grice, Justice, disqualified, and Wyatt, Justice, who dissents from the rulings to the effect that the verdict on count 3 was unauthorized, and from the judgment of reversal as to that count.