Opinion
15151.
MAY 10, 1945. REHEARING DENIED JUNE 7, 1945.
Equitable petition. Before Judge Jones. Crawford superior court. December 8, 1944.
W. J. Wallace, for plaintiffs in error.
W. B. Mitchell, contra.
1. "The exclusive possession by a child of lands belonging originally to the father, without payment of rent, for the space of seven years, shall create conclusive presumption of a gift, and convey title to the child, unless there shall be evidence of a loan, or of a claim of dominion by the father acknowledged by the child, or of a disclaimer of title by the child." Code, § 48-106. The evidence authorized the jury to find that the petitioner had obtained title under the provisions of this statute.
2. The special ground of the motion for new trial containing newly discovered evidence which shows that the petitioner at no time held possession of the land involved for the space of seven years without the payment of rent and without a claim of dominion by his alleged donor acknowledged by him, and this ground otherwise meeting the requirements of the law, it was an abuse of discretion to overrule the same.
No. 15151. MAY 10, 1945. REHEARING DENIED JUNE 7, 1945.
Suit by Frank Grace against E. E. Matthews, J. T. Matthews, and Amelia Grace Rouse, as administratrix of the estate of Mattie Grace, praying for a decree of title to a described 120-acre tract of land, for cancellation of deeds thereto held by the defendants Matthews, and to enjoin the prosecution by the said defendants of a dispossessory warrant seeking to evict the petitioner from the land.
The petitioner alleged as follows: He was the owner and in possession of the land, having acquired his title by gift from his father "about the year 1929." He went into possession immediately, and has remained continuously in open and notorious possession, has paid no rent, and his father as donor has during such time claimed no dominion thereover. He has erected specified permanent improvements at an expense of approximately $500. His father, the donor, died about five years ago, and the petitioner understands that his father's wife had a year's support set apart to her from the estate, the particular property therein being unknown to the petitioner. The wife died, and the defendant, Amelia Grace Rouse, was appointed administratrix of her estate. The petitioner alleges on information and belief that the administratrix sold the land here involved to the defendants Matthews or their predecessor in title. The petitioner was in possession at the time of the said sale by the administratrix, and the administratrix was not in possession of the land at that time, and for this reason the sale was void and the deed executed by the administratrix to the purchaser at the said sale is likewise void. The defendants Matthews have procured a dispossessory warrant against the petitioner, which was placed in the hands of the sheriff who has notified the petitioner to vacate within three days. The petitioner is not the tenant of the said defendants or anyone else, but is the true owner and his possession is that of owner. The void administratrix's deed constitutes a cloud upon the petitioner's title and should be canceled.
The answer denied the material allegations of the petition, but admitted the death of the petitioner's father and the death of his wife, the appointment of the defendant, Amelia Grace Rouse, as the wife's administratrix as alleged, and the sale of the land as alleged, but denied that the petitioner was in possession of the land as owner, and alleged that the administratrix was lawfully in possession at the time of the sale.
Upon the trial several witnesses testified for the petitioner that he had been in possession of the land involved for a period of twelve or fifteen years, all of them being indefinite and uncertain as to the exact number of years. The petitioner testified in support of the material allegations of his petition, but was indefinite as to the exact time when he went into possession, his testimony being, that he had "lived on that land about fifteen years. I don't remember the exact year — 1932, I believe. Anyway, fifteen years last Christmas." He testified that he had never paid his father any rent, that he had not paid taxes on the land, for "Papa paid the taxes," that he made valuable improvements, and that "I didn't pay Mattie any rent. I don't remember paying her rent." Also introduced in evidence were two mortgages executed by the petitioner to the Secretary of Agriculture for and on behalf of the United States of America, dated respectively April 12, 1930, and February 23, 1931, to secure seed loans of $65 and $100, the mortgages conveying crops to be grown by Frank Grace for the years mentioned upon the land here involved described as 150 acres; and attached to each of said mortgages were waivers of landlord's lien for rent signed by Dolphus Grace, who was the father of the petitioner, and, as contended by the petitioner, the donor to him of the land here involved.
A verdict was returned in favor of the petitioner, and the defendants' motion for new trial was amended by setting up one new ground of alleged newly discovered evidence. This ground attached as an exhibit an affidavit duly executed by John R. Padrick, in which it is stated that the affiant knows Frank Grace and knew his father, Dolphus Grace; that the affiant has served as Crawford County supervisor of the Farm Security Administration since September, 1936; that in such capacity he had business transactions with Frank Grace and his father Dolphus in 1936 and 1937; that the affiant knows that Frank Grace rented from Dolphus Grace the land on which he, Frank Grace, lived in 1936 and 1937; that the affiant knows of his personal knowledge that the relationship of landlord and tenant existed between Dolphus Grace as landlord and Frank Grace as tenant as to the said land during the years 1936 and 1937. He has seen a receipt dated June 2, 1936, signed by Dolphus Grace, acknowledging receipt of $15, as rent for 1936 of the said land, paid by Frank Grace. The affiant also knows that the said land was rented on February 5, 1935, to Georgia Rural Rehabilitation Corporation by Dolphus Grace, for the remainder of that year; and that on the same date the same land was subrented for the same year to Frank Grace by Georgia Rural Rehabilitation Corporation for the rental price of $30. The aforesaid rent receipt and copies of executed contracts evidencing the rental agreements for the years 1935, 1936, and 1937, whereby Frank Grace rented the said described land, being the land on which he resided, are of file in the Crawford County office of the Farm Security Administration, and may be made available for inspection and as evidence by proper court order only. The affiant made known the facts related in this affidavit to attorney W. D. Aultman on July 28, 1944, and prior thereto he had not mentioned the facts herein related to either E. W. Matthews, J. P. Matthews, Amelia Grace Rouse, W. J. Wallace, or W. D. Aultman. The affidavit further recites that it is made for the purpose of being used on the hearing of the motion for new trial in the present case.
Proper supporting affidavits as to good character, as required by the statute, were executed by Hoy Dent and L. R. O'Neal and were attached to this ground of the motion. There was also a joint affidavit of each of the defendants and each of their counsel attached to this ground of the motion. The affidavit by the defendants and their counsel states that the affiants did not know of the evidence set out in this ground of the motion for new trial before the trial, and that the same could not have been discovered by the exercise of ordinary diligence; that prior to the trial the affiants made search of the records in the office of the clerk of the superior court of Crawford County, but found no record of the rental contracts for the reason that the same had not been recorded, nor have the said contracts yet been found among the possessions of Dolphus Grace, although search has been made among the possessions of that decedent to which the affiants had access.
The motion for new trial as thus amended was overruled, and the defendants excepted.
1. It is declared in the Code, § 48-106: "The exclusive possession by a child of lands belonging originally to the father, without payment of rent, for the space of seven years, shall create conclusive presumption of a gift, and convey title to the child, unless there shall be evidence of a loan, or of a claim of dominion by the father acknowledged by the child, or of a disclaimer of title by the child." Under the provisions of the quoted statute, the evidence upon the trial authorized the verdict, and the general grounds of the motion for new trial are without merit. The evidence authorized a finding that the alleged gift was made in 1929, and that the petitioner went into possession immediately and has remained in possession ever since. The two crop mortgages for the years 1930 and 1931, bearing a writing signed by the petitioner's father, whereby he waived his landlord's liens for rent for those years, showed "a claim of dominion by the father acknowledged by the child," which under the statute would rebut the conclusive presumption thereunder for the year 1931. The evidence shows that the father, and not the son, returned the land for taxes and paid the taxes thereon during the entire period, and, whether or not sufficient to overcome the statutory presumption of a gift, was insufficient to demand a verdict to that effect. From 1931 through 1939, the year in which the father died, aside from the payment of taxes there was no evidence of a claim of dominion by the donor acknowledged by the or of the payment of rent. While the defendant administratrix testified that the petitioner paid the rents after the death of his father in 1939, there was a period of more than seven years subsequently to 1931 during which the petitioner was in possession without the payment of rent, which the jury under the evidence was authorized to find gave title to the petitioner under the terms of the statute.
2. The special ground presents evidence that is obviously material. It is not merely cumulative or impeaching in character. See Cooper v. State, 91 Ga. 362 (2) ( 18 S.E. 303); Fellows v. State, 114 Ga. 233 ( 39 S.E. 885). It is material, in that it very definitely breaks the continuity of possession, subsequently to 1931, by the petitioner without the payment of rent and without a claim of dominion by the donor acknowledged by him for the statutory space of seven years. If this evidence is true, and it will be so treated since there was no countershowing or challenge of its correctness, the petitioner paid rent on the land involved for the years 1935, 1936, and 1937, and his father, as the owner and landlord, collected the rent thereon for the years mentioned. We are familiar with the often-stated policy of the law to end litigation, and for this reason ordinarily look with disfavor upon the grant of a new trial upon newly discovered evidence, but this policy of the law must and does yield to the higher and supreme object of the law which is to do full justice in all cases. Newly discovered evidence is made a ground for new trial by statute. Code, § 70-204. It is there declared that: "A new trial may be granted in all cases when any material evidence, not merely cumulative or impeaching in its character, but relating to new and material facts, shall be discovered by the applicant after the rendition of the verdict against him, and shall be brought to the notice of the court within the time allowed by law for entertaining a motion for a new trial." While the statute states that a new trial "may be granted," this does not mean that in a proper case, where all the rules of law have been met, a new trial may or may not be granted, but on the contrary it means that in such a case a new trial must be granted. Werk v. Big Bunker Hill Mining Corp., 193 Ga. 217, 228 ( 17 S.E.2d 825). But, if any of the legal requirements applicable to such a ground has not been met, a new trial will not be granted; and on matters resting in the sound discretion of the trial judge he may, in the exercise of that discretion, deny a new trial. The Code, § 70-205, specifies certain supporting affidavits essential to the validity of such a ground; and it has been held by this court that, unless such newly discovered evidence would likely produce a different result upon another trial, it is not error to overrule the motion. Anderson v. State, 190 Ga. 455 ( 9 S.E.2d 642); Mills v. State, 193 Ga. 139 ( 17 S.E.2d 719); Cannon v. State, 194 Ga. 277 ( 21 S.E.2d 689). The movant and his counsel must show that they were diligent in seeking to discover such evidence. Redding v. State, 183 Ga. 704 (2) ( 189 S.E. 514); Mills v. State, supra. Such a ground of a motion for new trial is addressed to the sound discretion of the trial judge. Frank v. State, 142 Ga. 617 ( 83 S.E. 233); McCoy v. State, 191 Ga. 516, 518 (5) ( 13 S.E.2d 183). His judgment, unless it is an abuse of discretion, will not be disturbed. Hall v. State, 141 Ga. 7 ( 80 S.E. 307); Harris v. State, 149 Ga. 724 (2) ( 102 S.E. 159); Southwell v. State, 188 Ga. 310, 311 (2) ( 4 S.E.2d 26); Welch v. State, 190 Ga. 161 (2) ( 8 S.E.2d 645). But it must be remembered that the sound discretion here referred to is subject to the law, and that it is an abuse of discretion to render judgment contrary to fixed rules of law. The judge is the trior of whether or not sufficient diligence has been shown. Redding v. State, supra; Mills v. State, supra. As pointed out by this court in Moore v. Ulm, 34 Ga. 565, the well-defined rules of law applicable to such a ground insure against any injury resulting from its abuse. The main attack on this ground of the motion is based upon the fact that the affidavit of the movants and their counsel contains a general statement that they could not have discovered the new evidence by the exercise of ordinary diligence. It is insisted that such a general statement is a mere conclusion, and that the affidavit does not contain a statement of facts sufficient to enable the trial judge to determine whether or not proper diligence is shown. It has been stated by this court that such an affidavit should allege acts, and that a mere general conclusion is insufficient. Patterson v. Collier, 77 Ga. 292 ( 3 S.E. 119); Redding v. State, supra; Mills v. State, supra. The affidavit here involved is not subject to the criticism made. It asserts that the affiants prior to the trial made search of the records of the county, and could find no rental contracts, and that they searched the possessions of Dolphus Grace to which they had access, in an attempt to discover such facts. This was sufficient to satisfy the rule. It shows an endeavor to discover evidence of the very fact which the new evidence here established. It would be unreasonable to require more. Certainly there was no fact or circumstance pointing out this new witness to the affiants as a person having such knowledge. They could not read his mind, and his affidavit shows that he never disclosed such matters to either of the said affiants prior to the trial. The affidavit is not subject to the attack made upon it. This ground meets every requirement of the law. It was an abuse of discretion to overrule the same. Clark v. Carter, 12 Ga. 500 (58 Am. D. 485); Moore v. Ulm, supra; Mills v. May, 42 Ga. 623; Widener v. State, 54 Ga. 344; Gregory v. Harrell, 88 Ga. 170 ( 14 S.E. 186); G. S. F. Ry. Co. v. Zarks, 108 Ga. 800 ( 34 S.E. 127).
Judgment reversed. All the Justices concur.