Opinion
17629.
SUBMITTED OCTOBER 9, 1951.
DECIDED JANUARY 14, 1952. REHEARING DENIED JANUARY 29, 1952.
Complaint for land. Before Judge Fort. Taylor Superior Court. July 23, 1951.
A. C. Felton III, for plaintiff.
Dan S. Beeland and John A. Smith, for defendant.
1. There being no complaint in the motion for new trial or bill of exceptions that the court erred in directing a verdict because under the pleadings and evidence there were issues of fact that should have been submitted to the jury, the case stands as if the jury had returned a verdict upon the evidence.
2. While a sale by a married woman to her husband without being allowed by an order of the superior court of the county of her domicile is void, yet a prescription may arise under such deed in favor of the the husband, if the parties are not living together.
3. The evidence was sufficient to authorize the verdict in favor of the defendant.
No. 17629. SUBMITTED OCTOBER 9, 1951 — DECIDED JANUARY 14, 1952 — REHEARING DENIED JANUARY 29, 1952.
Mrs. C. E. Farlow (formerly Mrs. O. O. Brown) filed in Taylor Superior Court, against J. H. Brown, a petition seeking to recover a described tract of land consisting of ten acres lying in land lot 220 in the Fifteenth District of Taylor County, to have title to the land decreed in her, and to recover mesne profits. The petitioner and the defendant claim under a chain of title which originated in O. O. Brown. On October 31, 1929, O. O. Brown executed a warranty deed, which recited a consideration of $1500, conveying the realty to the petitioner. On October 2, 1934, the petitioner gave a promissory note for $729.33 to Home Owners Loan Corporation, and the same date executed a deed to secure said debt. On May 2, 1938, the petitioner executed a warranty deed, which recited a consideration of $1000, conveying the realty back to her husband, O. O. Brown. In December, 1938, the petitioner received a final decree of divorce from O. O. Brown. On December 10, 1938, O. O. Brown executed a deed conveying the property to Woodland Bank to secure a debt of $96. On October 2, 1939, O. O. Brown executed a deed conveying the realty to the defendant to secure a debt of $1000. On October 21, 1939, and August 13, 1942, respectively, Woodland Bank and Home Owners Loan Corporation assigned their promissory notes and security deeds to the defendant.
It is alleged that, upon the assignment of the last mentioned security deed, the defendant went into possession of the realty, and that he has since received the profits therefrom which are more than enough to repay the principal and interest due him.
In addition to what has been stated the evidence on the trial developed the following facts: The petitioner and O. O. Brown separated about two years prior to the final decree of divorce. She left him in the house in October, 1938, and he remained there until November, 1943, at which time he rented it to C. S. Price, with the understanding that Price would pay the stipulated monthly rental to Rod Brown until a debt that O. O. Brown owed his brother Rod was paid, after which the monthly rental was to be applied on O. O. Brown's debt to the defendant. Price remained in the house until the last day of May, 1946, O. O. Brown having died in October, 1944. The defendant has been in possession since Price left. The evidence was conflicting on such questions as the character of the husband's possession and that of his tenant, the yearly rental value of the realty, the amount the defendant paid to Home Owners Loan Corporation, and the value of necessary repairs made by the defendant.
The trial judge directed a verdict in favor of the defendant. The petitioner's motion for a new trial, based solely on the usual general grounds, was overruled, and the case comes to this court for review upon her exceptions to that judgment.
1. There being no complaint in the motion for new trial or bill of exceptions that the trial court erred in directing a verdict because under the pleadings and evidence there were issues of fact that should have been submitted to the jury, the case stands upon the same principle as if the jury had returned a verdict upon the evidence. Code, § 110-104; Webb v. Hicks, 117 Ga. 335 (5) ( 43 S.E. 738); Dickenson v. Stults, 120 Ga. 632 (1) ( 48 S.E. 173); Hightower v. Hightower, 159 Ga. 769 (9) ( 127 S.E. 103); Gilliard v. Johnston Miller, 161 Ga. 17 (1) ( 129 S.E. 434); Tyson v. Anderson, 164 Ga. 673, 677 (4) ( 139 S.E. 410); Shippen Hardwood Lumber Co. v. Johnson, 168 Ga. 112 (1) ( 147 S.E. 115); Braswell v. Federal Land Bank, 169 Ga. 235 (2) ( 149 S.E. 785); Ford v. Ford, 203 Ga. 681 ( 47 S.E.2d 865); Conley v. Brophy, 207 Ga. 30 (1) ( 60 S.E.2d 122).
2. While prior to the passage of the act of 1950 (Ga. L. 1950, p. 174), repealing Code § 53-504, a sale by a married woman to her husband without being allowed by an order of the superior court of the county of her domicile was not only voidable, but void ( Hood v. Perry, 75 Ga. 310 (1); Fulgham v. Pate, 77 Ga. 454 (2); Stonecipher v. Kear, 131 Ga. 688 (2), 63 S.E. 215; Buchannon v. James, 135 Ga. 392, 69 S.E. 543; Echols v. Green, 140 Ga. 678 (3), 79 S.E. 557), yet, a prescription may arise under such deed in favor of the husband, if the parties are not living together. Goss v. Brannon, 167 Ga. 498 (1) ( 146 S.E. 187); Stallings v. Britt, 204 Ga. 250, 255 (3) ( 49 S.E.2d 517).
3. "In passing on the general grounds of a motion for new trial, this court passes not on the weight but on the sufficiency of the evidence. It is our duty to determine whether the verdict as rendered can be sustained under any reasonable view taken of the proofs submitted to the jury." Ingram v. State, 204 Ga. 164, 184 ( 48 S.E.2d 891).
The present deed from the petitioner to O. O. Brown (her husband) was executed on May 2, 1938. The petitioner left him in the house in October, 1938. He continued in possession until November, 1943, after which his tenant stayed in possession until May 31, 1946. Thus, during a period of more than seven years after the petitioner abandoned the property, O. O. Brown and his tenant were in possession. O. O. Brown having died in October, 1944, his possession, and that of his tenant, inured to the benefit of the legal representatives of O. O. Brown, and if none, to his heirs. Compare Code, § 85-407; Knorr v. Raymond, 73 Ga. 749 (3); Walker v. Steffes, 139 Ga. 520 (9) ( 77 S.E. 580); Turner v. Neisler, 141 Ga. 27 (8) ( 80 S.E. 461). The petitioner, having received her final decree of divorce in December, 1938, was not an heir at law of O. O. Brown, and she does not claim to be his legal representative. The children of O. O. Brown are not parties to this case, and for that reason are not affected by any ruling here made.
Accordingly, the evidence was sufficient to authorize a finding that, as against the petitioner, the legal representatives of O. O. Brown, and if none, his heirs, had acquired a prescriptive title by seven years' adverse possession under the deed from the petitioner to O. O. Brown or, in other words, that the outstanding paramount title was in a person other than the petitioner. It follows that the trial judge did not err in overruling the petitioner's motion for new trial based solely on the usual general grounds.
In this view it becomes unnecessary to pass upon the question of whether or not a wife's deed reciting a consideration to her husband must refer to or have attached an order of the superior court of the county of her domicile, in order to be a valid deed.
Judgment affirmed. All the Justices concur. Duckworth, C. J., and Hawkins, J., concur specially.
We specially concur in the judgment of affirmance for the reason that the evidence fails to show any restoration or offer to restore by the plaintiff of the consideration received by her for the conveyance which she seeks to set aside. Code, § 37-104; Hendrix v. Bank of Portal, 169 Ga. 264 (5) ( 149 S.E. 879).