Opinion
17129.
JULY 11, 1950.
Partition; title involved. Before Judge Shaw. Fulton Superior Court. March 22, 1950.
Wesley G. Bailey, for plaintiff in error.
Newell Edenfield, contra.
1. Ground 4 of the amended motion for new trial is incomplete and presents no question for determination by this court.
2. The judge did not err in refusing to grant a nonsuit.
3. It is never error to refuse to direct a verdict.
4. The verdict is not without evidence to support it, and the judge did not err in overruling the motion for new trial as amended. Code, § 85-1001; Baker v. Shepherd, 37 Ga. 12.
Judgment affirmed. All the Justices concur.
No. 17129. JULY 11, 1950.
Mrs. Rosa Lee Wheeler Locklin filed a petition against her former husband, David Locklin Jr., for a partition by sale of described property, alleging that the plaintiff and the defendant were tenants in common. The defendant filed an answer, denying that the plaintiff was his contenant, and praying that the deed, a copy of which was attached to her petition, be canceled as a cloud upon his title.
On the trial the plaintiff introduced in evidence a warranty deed, dated December 31, 1945, signed by the defendant, conveying to her "an undivided interest" in and to the property described in her petition, and reciting a consideration of $10 and "other valuable consideration." The deed was filed for record on December 31, 1945, and recorded on January 11, 1946. In addition to the deed, the plaintiff offered in evidence the answer of the defendant in the divorce case filed in Fulton Superior Court, being No. A-9350, and particularly paragraph 10 of the answer, as follows: "Believing his wife to be a faithful and affectionate woman, and intending to comply with all the vows she had taken at the time of marriage, he deeded to her an undivided one-half interest in and to the house and lot described."
At the conclusion of the plaintiff's evidence, the defendant offered no evidence, and made a motion for a nonsuit, which motion was denied. The trial judge refused to direct a verdict for the defendant, but directed the jury to return a verdict finding that the deed operated as a conveyance to the plaintiff of a one-half undivided interest in the property described. The defendant filed a motion for new trial, containing the usual general grounds, which he later amended, adding three additional grounds, as follows:
"Fourth. Because the court erred in admitting documentary evidence to show the quantity or proportion of real estate intended to be conveyed by the deed admitted in evidence, but failing to stipulate that any particular portion was conveyed.
"Fifth. Because the court should have directed a nonsuit on motion of defendant.
"Sixth. Because the court should have directed a verdict in favor of defendant and against plaintiff for the reason that the deed failed to operate as a conveyance."
The defendant's motion for new trial, as amended, was overruled, and he excepts to that judgment.