Opinion
21372, 21373, 21374.
ARGUED SEPTEMBER 12, 1961.
DECIDED OCTOBER 5, 1961.
Equitable petition. Murray Superior Court. Before Judge Davis.
Sam Calhoun, Frank M. Gleason, for plaintiffs in error (Case No. 21372).
H. E. Kinney, L. Hugh Kemp, Pittman, Kinney Pope, Charles A. Pannell, Hardin, McCamy Minor, contra.
Charles A. Pannell, H. E. Kinney, L. Hugh Kemp, Pittman, Kinney Pope, for plaintiffs in error (Case No. 21373).
Frank M. Gleason, Sam Calhoun, Carlton McCamy, Hardin, McCamy Minor, contra.
H. E. Kinney, Pittman, Kinney Pope, Charles A. Pannell, L. Hugh Kemp, for plaintiffs in error (Case No. 21374).
Frank M. Gleason, Sam Calhoun, Hardin, McCamy Minor, contra.
1. The exceptions in Case No. 21372 to the judgments overruling the motions to dismiss the amended motion for new trial on the grounds that no bona fide attempt to brief the evidence had been made, and that the amended grounds requiring consideration of the evidence failed to specify the pages of the record where such evidence could be found; and the motions to dismiss the writs of error in Cases Nos. 21373 and 21374 upon the ground that no proper brief of evidence was presented, are all without merit. It can not be said that the movant did not bona fide believe the entire documents were necessary to a decision. Nor is the amended motion containing numerous grounds subject to dismissal because some but not all fail to comply with the rule. We do not hold that any of the grounds are subject to the motion, but we need to say only that all the grounds are not and, hence, the entire amended motion was not subject to dismissal. Nothing ruled in Martin v. Smith, 211 Ga. 600 ( 87 S.E.2d 406), and cases cited therein, or found in Code Ann. § 6-901 (Ga. L. 1957, p. 224) conflicts with the above ruling.
2. The plaintiffs having elected a money verdict as to the personal property sought to be recovered, and the court having instructed the jury to return a money verdict, the failure to do so is a ground for new trial, and the court did not err in granting the new trial as insisted upon in the first special ground of the motion for new trial as amended. The fifth special ground is, in substance, the same as the first, and it is likewise meritorious. Code § 107-105; Bradley v. Burkett, 82 Ga. 255 ( 11 S.E. 492).
3. The assignments of error in the cross-bill of exceptions, Case No. 21373, must be ruled on in conformity with Code Ann. § 6-901 (Ga. L. 1957, p. 224), since there will be a new trial in the lower court as to the ownership of the personal property, and the law of the case might be established against the plaintiffs in error if such assignments of error therein are not reviewed. Consideration of these assignments of error follows:
(a) The original petition alleged a cause of action for some of the relief prayed, and while certain of the demurrers were sustained and others overruled, no renewed demurrers were filed after the amendment. Hence no further ruling will be made on the sufficiency of the pleadings after the amendment.
(b) No argument having been submitted on special grounds 6, 9 and 11 of the amended motion for new trial, these grounds are deemed abandoned.
(c) Under the ruling in division 4 of this opinion that the evidence as to the personal property was in conflict, making an issue for the jury, the general grounds are without merit.
(d) The ruling in division 4 of this opinion will remove the question of ownership of the real property from this case on a new trial. Hence, the amendment to the defendants' answer which was stricken on motion, and special grounds 2, 3, 4 and 12 of the amended motion for new trial, all of which assign error on questions involving real property, need not be considered further.
(e) Special ground 7 is meritorious since it complains of the failure to allow a witness to testify that "his father did not make any of the deposits," since one of the main issues of the case was who deposited and owned the funds in the H. L. Reed bank account. The witness would be entitled to make such a statement if it was within his knowledge.
(f) Special ground 8 is an objection to a charge that the verdict would be either for the plaintiffs or for the defendants. This objection is well taken to this excerpt from the charge since it was not alleged or proved that the defendants jointly claimed ownership and had possession of the personal property alleged to have been converted. On a new trial, should the plaintiffs elect a money verdict, the court should properly instruct the jury as to the verdict against each of the defendants, the value of the various items alleged and proved to have been converted by that defendant in the event the jury finds for the plaintiff against the defendants. Howard v. Snelling Snelling, 28 Ga. 469 (3); McCoy v. Romy Hammes Corp., 99 Ga. App. 513 (5) ( 109 S.E.2d 807).
(g) Special ground 10 complains of the allowance of illegal evidence as to the ownership of a planing mill located on the lands of the defendant, George Reed. Since it was not shown in this ground or by reference to the brief that the planing mill was attached to the realty, this ground is insufficient to present any question for decision.
4. Where the plaintiffs seek to recover in one suit described realty on the claim of an implied trust by paying the purchase money while the title was taken in the defendant, and certain personalty because of ownership; and the evidence as to the land failed to show any alleged payments were made before or at the time of the conveyances, and failed to rebut the presumption of gift from the father to the son; but the evidence as to the personalty was conflicting; it was error to overrule separate grounds of the motion for judgment as to each tract of land in conformity with previous motions for verdict in the same manner; but not error to overrule such motion as to the personalty.
ARGUED SEPTEMBER 12, 1961 — DECIDED OCTOBER 5, 1961.
The joint administrators of the estate of Henry Loftin Reed, deceased, filed an equitable action for recovery of certain real and personal property of the estate against George J. Reed and T. P. Reed, two of the sons of the deceased. The administrators are also sons of the deceased. Discovery was sought against two banking institutions named as defendants as well as the other defendants, but the banking institutions having answered the discovery, they are no longer involved in the litigation.
After a trial, in which the jury returned a verdict for the plaintiffs for named items of real and personal property and other items of real and personal property for the defendants, the defendants filed a motion for new trial which was later amended, and a motion for judgment notwithstanding the verdict in accordance with their motions for directed verdict filed at the close of the evidence. When the motion for new trial as amended came on to be heard, the petitioners made oral motions to dismiss the motion for new trial on the grounds that (1) the approved brief of evidence was insufficient in that no bona fide effort had been made to brief the documentary evidence, and (2) the special grounds of the amended motion for new trial were incomplete in that they failed to point out the pages and parts of the record and brief of evidence necessary for a complete understanding of the errors therein complained of in the amended motion for new trial. Both of these motions were overruled and error is assigned thereon in the main bill, Case No. 21372, by the plaintiffs in the lower court.
After a hearing, the trial court granted a new trial solely on special ground 1 of the amended motion for new trial. The assignment of error in Case No. 21372 is to this final judgment granting the new trial as well as the earlier motions to dismiss which were overruled.
By separate bill of exceptions, the defendants sought a correction of alleged errors of law committed by the trial court in overruling their motion for judgment notwithstanding the verdict in accordance with their motions for directed verdict previously made. This case is No. 21374 in this court. By cross-bill to the main bill of exceptions, the same being Case No. 21373, the same defendants sought to review a judgment overruling certain demurrers to the petition, the sustaining of a motion to strike an amendment to their answer, and the overruling of the general and special grounds of the motion for new trial, as amended, despite the grant of a new trial on the first special ground of their amended motion for new trial.
Motions to dismiss the bills of exceptions in Case Nos. 21373 and 21374 were filed by the defendants in error, the plaintiffs in the court below, again insisting that no bona fide brief of evidence had been made.
In substance, the petitioners allege that the deceased, H. L. Reed, for many years prior to his death, was engaged in the general hardware and lumber businesses, including operations of sawmills and a planing mill, as well as a general farming operation; that he had bought, sold and traded during these years and acquired title to considerable real estate and personal property, acquired in the name of H. L. Reed, his money being used to pay for same, but the defendant, George Reed, claimed title to the personal property and used money of the deceased to buy all of said land having deeds made in George Reed's name. They allege that because of the payment of the purchase money a trust resulted in favor of the deceased, and asked the court to set up, declare and establish a trust in the real property. The prayers are for temporary injunction, possession of the personal property with reasonable hire, discovery against all the defendants named therein, appointment of a receiver, an accounting, and that a resulting trust be set up as to the real property, and for such other relief as they may be entitled to. The answer of the defendants, in the main, denies the allegations of the petition, and the defendant, George Reed, states in response to the discovery that he earned the money to buy both the real and personal property.
From the evidence introduced by the plaintiffs the following facts were proved by them: The father died in October 1958 and was in possession of all of the real and personal property claimed in the suit. He had been engaged in the operation of the various businesses from about 1940 to his death. He opened a bank account in 1939 which remained open and active until his death in 1958, called the "H. L. Reed account." He actively worked by sawmilling, cutting timber, building roads and farming and controlling the work of others in these endeavors from 1939 to his death. Title to the 11 tracts of land involved was shown to be in the name of George Reed except the Cooper property (sometimes called the Yates Cove, Smith Creek or Rock Creek property) which was shown to be deeded to "J. L. Reed." A number of the canceled checks of the "H. L. Reed account" were shown to have been used to pay sums of money for the purchase of various pieces of personal property here involved, "stock investment" to a hardware store; to pay persons and businesses from whom both personal and real property had been purchased, some checks being dated about the time of the date of the deeds to land and made out to the grantors in the deeds, and at least one marked "part-payment land"; to pay for repair of personal property, liability insurance, car payments, doctors, the tax collector for taxes, and the Internal Revenue Service for Federal unemployment taxes. The following documentary evidence was introduced: a series of deposit slips to the H. L. Reed account for the years 1957 and 1958, various Federal, State and county tax returns in the name of H. L. Reed, ledger sheets of the bank showing the status of the account from 1939 to 1958; the incorporation of the same hardware store from whom a H. L. Reed account check had purchased "stock investment"; the inventory and appraisement made by the estate appraisers for the court of ordinary, and the objections thereto by the defendants in the same court. The testimony and evidence of the defendant tended to deny that any of the property was their father's; that some of it was borrowed personal property belonging to others; that George Reed owned most of it outright and T. L. Reed owned only a few items of personalty and did not claim anything else; that George Reed paid for it from his earnings, worked together with his father from about 1940 to 1952 when he "settled up" with his father; that he continued to use the bank account in the name of H. L. Reed for convenience and to separate his businesses, and because the business connections knew of him under that name; that everything belonged to him from 1952 on except the few items of borrowed personal property mentioned above. An official from the bank testified that he had not known of the father, H. L. Reed, to either make a deposit or write a check on the "H. L. Reed account" during the last few years, but admitted that he had not been on the front window at the bank all the time; that, as far as he knew, all the deposits shown on the deposit slips were made by George Reed, and the signature "H. L. Reed" on most of the checks was, in his opinion, made by George Reed; and that the bank had no authorized signature card for either George Reed or H. L. Reed to sign checks on the "H. L. Reed account." At the close of the evidence the plaintiffs asked for a money verdict for the personal property.
While judgments will be rendered in each case, one single opinion with headnotes will be written to embrace all three of these cases.
1, 2, and 3. These headnotes require no further elaboration, but some of the rulings therein, necessarily, depend upon our ruling in Case No. 21374 which is the subject matter of division 4 and the corresponding headnote of this opinion.
4. We are confronted with the necessity of deciding whether or not Code Ann. § 110-113 (Ga. L. 1953, Nov.-Dec. Sess., p. 440; Ga. L. 1957, p. 224) is restricted to verdicts and judgments that terminate the entire case or includes verdicts and judgments upon only a part of the issues in the case. We would doubt the wisdom of allowing a simple case to be carved into a large number of cases on review. On the other hand we fully recognize that often upon the trial of cases like the instant one, where the issues involved are the ownership of many separate items of property, the evidence might well authorize a verdict one way as to some of the items, and at the same time, demand a verdict in favor of the other party as to other items. It is entirely in order to move for a directed verdict as to those items where the evidence demands it and allow the jury to decide as to other items. Here, the defendants made separate motions as to various items for a verdict as to them and followed with similar grounds in their motion for judgment in accordance with their motion for directed verdict. We therefore can not say that since the motion was not meritorious as to some of the items the motion must fail despite its validity as to some of the items. Despite the possibility of its abuse we must hold that the language of the statute authorizes these numerous grounds of the motion, and consequently, this court must review them on their merit.
We can group the grounds of the motion for judgment notwithstanding the verdict into two groups since all grounds in each group are identical as to merit. The first group is all the real estate described in plaintiffs' Exhibit "B" attached to the petition and embracing the land involved in the case. By paragraph 13 of the petition it is stated and thereby conceded that title to all this land is in the defendant George Reed. Petitioners' sole claim thereto is alleged to be because their intestate paid the purchase money and thus an implied or resulting trust in favor of the intestate resulted, and they seek its recovery on this basis. Consequently all land stands on the same basis, and the evidence is substantially the same as to all land. All personalty is covered under one separate ground and will be considered as the second group.
There are certain well-established rules of law which must be met in order to create the trust provided for under Code § 108-106. First, it must be shown that the money was not a loan. Magid v. Byrd, 164 Ga. 609, 618 ( 139 S.E. 61). In order for a trust to result from paying only a part of the purchase money, the actual amount must be proven. Kehely v. Kehely, 200 Ga. 41, 42 (5) ( 36 S.E.2d 155); Williams v. Porter, 202 Ga. 113 ( 42 S.E.2d 475); McCollum v. McCollum, 202 Ga. 406 ( 43 S.E.2d 663). It is indispensable that the purchase money be paid before or at the time of purchase. Loggins v. Daves, 201 Ga. 628 (4) ( 40 S.E.2d 520).
By discovery plaintiffs elicited from the defendant George Reed the statement, under oath, that he earned in enumerated ways all the purchase money and it was his property. Under Code § 38-1105 this response is evidence, and testimony of two witnesses, or one witness and corroboration, is required to refute it.
Without reciting all that is said in this voluminous record, it can be correctly stated that in all of it there is not to be found a word or syllable to the effect that any money of the intestate that might have gone into these lands was not a loan or gift. Since it would have been from father to son, the provisions of Code § 108-116 are applicable, and hence, a gift is by law presumed; and there is not a word to rebut this rebuttable presumption. In the same fashion, there is a total absence of evidence to show such moneys were paid before or at the time the conveyances were made to George Reed. The evidence demanded a verdict in favor of the defendants as to this property, and it was reversible error to deny the motion for judgment notwithstanding the verdict in accordance with the motions for directed verdict as to the real property. In accord with the statute, direction is given to enter final judgment in favor of the defendants respecting all the lands shown in plaintiffs' Exhibit "B."
The property in the second group is all personalty, and petitioners seek to recover it upon the ground that it was owned and possessed by the intestate at the time of his death; and while conflicting in various ways, the evidence did not demand a verdict in favor of the defendants as to this property. Consequently, as to this property, the motion for judgment notwithstanding the verdict in accordance with the motion or motions for directed verdict previously made was properly overruled. It follows that the judgment in Case No. 21374 must be reversed as to the realty and affirmed as to the personalty.
As ruled in headnote 2 there must be a judgment of affirmance on the main bill of exceptions, and since we must rule on the assignments of error in the cross-bill, and the amended motion for new trial would require the grant of a new trial as ruled in headnote 3(e) and 3(f), the cross-bill of exceptions is reversed as to special grounds 7 and 8 of the amended motion for new trial.
Judgment reversed in part and affirmed in part in Case No. 21374; affirmed in Case No. 21372, and reversed in Case No. 21373. All the Justices concur.