Opinion
13973.
MARCH 11, 1942.
Equitable petition. Before Judge Franklin. Richmond superior court. September 16, 1941.
B. B. McCowen, for plaintiff. J. A. Merritt, for defendant.
1. Pauper affidavit held sufficient to avoid liability for costs.
2. After verdict for the defendant in an action by next friend of minors, to recover land set apart as a year's support, and sold by the widow for support of herself and the minors, the assignments of error on the charge to the jury, and on omission of stated instructions, presented no cause for new trial.
3. Refusal to direct verdict is not erroneous.
4. Verdict for the defendant was supported by evidence.
No. 13973. MARCH 11, 1942.
In addition to what is contained in the report of the case on its former appearance ( Gaddy v. Harmon, 191 Ga. 563, 13 S.E.2d 357), the following is found in the evidence in the record in the instant case. Gaddy, the defendant in error, to whom the deed was made, testified, in part: "At the time I bought this place I did not know whether Mrs. Thurmond had any means of support for herself and children. She told me she had those children to take care of, and didn't have any work and no income, and would have to sell that property to take care of her children." There was no further testimony by Gaddy with regard to the use to be made of the money which he paid for the property. Defendant's attorney, who drew both the security deed and the warranty deed, testified, in part, as follows: "Of my own knowledge, her mother and all had been living there together, and had been living together back in the days before Charlie Thurmond died. In other words, her mother was just a housekeeper; she had no means of support; they were supporting her. I knew the money should be year's support property. I knew it had to be used for support and maintenance of the children. That was what the property was sold for — the support and maintenance of the wife and children. I left out the recital in the deed. I say that, but I didn't think it was necessary then, and don't think it necessary now. I left out the recital that it was to be used for support and maintenance of the children. Mrs. Thurmond knew it, I knew it, and Gaddy knew it. . . As a matter of fact the deed introduced here, you will note in the description of the property it is described as that property which had been set aside as a year's support. . . It was a part and parcel of the whole agreement that this money was to be used for that purpose. I don't know what she did with the money. I haven't any idea. . . But I can tell you this, of my own knowledge, that at the time these deeds were signed, both the security deed and the warranty deed, it was the whole idea of everybody concerned that the money was to be used for support and maintenance of children and herself. She had the right to support and maintenance the same as they did, and it was the idea of all parties that that was what was going to be done with the money, because they were destitute if they didn't get it. . . She told me she was going to give the security before the money was passed, and I didn't even know when the money had been passed until Gaddy told me. No, sir, she didn't tell me at that time what she was going to do with it, and I went to draw the security deed. . . She didn't tell me she was going down there to get $200 for the support of her children. . . She didn't say anything about wanting it for those children when she signed. When she came up to see me before she signed she said she wanted to get it for support of herself and children."
There was no other testimony tending to show that the money received in payment for the property was to be used for maintenance and support of herself and her children, and no other testimony that Mrs. Thurmond so stated when she executed either the security or warranty deed. There was testimony on behalf of the plaintiff in conflict with that set forth above.
The jury returned a verdict in favor of the defendant. A motion for new trial was overruled, and the plaintiff excepted.
1. An affidavit of one as next friend for certain minors whose bill of exceptions has been transmitted to this court, which contains the statement that "deponent has no money, property, or other means by which she can pay the cost or give bond in the above-stated case, nor has the said minors [naming them] any property or means out of which they or either of them can pay the cost in the above-stated case, nor are they able to give bond for appeal in said case, as required by law. Deponent further says that she is advised and believes that she has a good cause for appeal in behalf of said minors, and makes this affidavit in forma pauperis in order that said appeal may be entered in accordance with the law without payment of cost, as provided by statute," is sufficient for the purpose mentioned therein. Wall v. Griffith, 193 Ga. 11 ( 17 S.E.2d 57); Code, § 6-1004.
2. It was not erroneous to charge the jury that "the plaintiff must make out her case by a preponderance of the evidence before a verdict can be had in her favor," although it may have been admitted by the defendant, Gaddy, that he was in possession of the said described property, and that it had been regularly set apart to plaintiffs and their mother out of the father's estate, and that there was no statement in the deed that the same was being sold for the support and maintenance of the plaintiffs. Code, § 38-103.
3. The charge that "If at the time this lady executed that deed she represented to Gaddy that the property was being sold for the purpose of maintenance and support of herself and children, then in that event it would be a good deed, and in that event a verdict should be found for Gaddy," was not erroneous for the reason urged, to wit, that it was misleading in that it allowed the jury to base a verdict purely upon the representation of the mother that the property was being sold for the purpose of maintenance and support of herself and children, it not appearing that any such representation had been made a part of the deed or was set forth in writing as would have been necessary under the law to pass a title.
4. There was no error in charging the jury that "If such representation were made to Gaddy and Gaddy believed that, and as a consequence of which he bought the property, he didn't have to follow the proceeds to see if it actually went to their support." Ragan v. Shiver, 130 Ga. 474 ( 61 S.E. 1); Reese v. Reese, 146 Ga. 684 ( 92 S.E. 218); Simpson v. Kelley, 171 Ga. 523 ( 156 S.E. 198); Reynolds v. Baxter, 177 Ga. 849 ( 171 S.E. 706). Compare Gibson v. Hodges, 147 Ga. 789 ( 95 S.E. 696).
5. The charge complained of, to wit, "I charge you that the remarriage of the widow is no bar to her right to sell the property involved here in this case," stated a sound principle of law, and was appropriate to the issues made by the pleadings and the evidence. Swain v. Stewart, 98 Ga. 366 ( 25 S.E. 831).
6. It was not erroneous to charge the jury that "in the absence of anything to the contrary it is presumed that the sale of the land involved in this case by the widow was for a proper and lawful purpose." Whitfield v. Maddox, 189 Ga. 870 (2 b) ( 8 S.E.2d 57).
7. It is not cause for the grant of a new trial that, without any request therefor, the court failed to charge the jury in effect that certain of the moneys paid out by the defendant being admittedly not for the support and maintenance of said wife and children, and that if any part of that purchase-price had been paid to the mother by the defendant for other uses known of by defendant, the title to that extent would not pass, and a verdict should be in favor of the plaintiff; the moneys referred to having been loaned to the widow before the sale by her here under attack, although it may be that the moneys so previously advanced entered into the consideration of the deed, there being proof that the sale itself was made for the purpose of acquiring funds needful for the support and maintenance of the beneficiaries of the year's support award. Swain v. Stewart, supra.
8. Nor was it error for the court to fail to charge, without request, that a year's support comes ahead of all other or previous indebtedness, including back taxes, against the property in dispute.
9. It is never erroneous to refuse to direct a verdict. Rivers v. Atlanta Southern Dental College, 187 Ga. 720 ( 1 S.E.2d 750).
10. The verdict was supported by the evidence.
Judgment affirmed. All the Justices concur.