Opinion
17406.
ARGUED MARCH 12, 1951.
DECIDED APRIL 9, 1951.
Partition. Before Judge Crow. Grady Superior Court. December 9, 1950.
Bell Baker and G. L. Worthy, for plaintiff in error.
Cain Smith, contra.
The judgment of the court below denying a new trial was not error.
No. 17406. ARGUED MARCH 12, 1951 — DECIDED APRIL 9, 1951.
Mr. W. G. Spence, deceased, died in possession of certain real estate which is involved in this suit. He was married twice. His first wife was Mrs. Lula Spence, who died about 1917 and by whom he had nine children. Defendants in error in this case are the children of the first marriage, and the offspring of deceased children of the first marriage. The second wife of W. G. Spence was Mrs. Pearly Anne Spence, by whom he had six children. Plaintiffs in error in this case are Mrs. Pearly Anne Spence and the children of the second marriage.
Mr. Carl Spence, plaintiff in the court below and a child of the first marriage, filed suit against the widow, the children of the first marriage and the heirs of deceased children of the first marriage, and the children of the second marriage, seeking to have certain described realty partitioned. Mrs. Pearly Anne Spence, for herself and for her minor children, filed objections to the partitioning proceedings, in which she set out that, at the time of his death, W. G. Spence was the owner of the lands here in question and had been in continuous, exclusive, and uninterrupted adverse possession of the lands for more than 30 years; that the lands had been set aside to her and her minor children as a year's support; and that the other heirs of W. G. Spence have no interest in the said lands.
The case proceeded to trial. There was introduced in evidence a deed from the Thorpe Spence Estate, dated 1908 and recorded in 1944. This deed is admitted by both parties to have been altered with regard to the grantee. The grantee in every instance except the granting clause is W. G. Spence. The grantee named in the granting clause is Mrs. W. G. Spence. In every instance where the name "W. G. Spence" appears, there is a blank space where an erasure appears. It is not seriously contended that an erasure has not been made, nor that what has been erased is not "Mrs." before "W. G. Spence." It is contended by the plaintiff in error that the deed was altered before it was executed, and that the intention of the parties to the deed was to convey the land to W. G. Spence. The defendant in error contends that the deed was altered after it was executed, and that the land belonged to Mrs. W. G. Spence (Mrs. Lula Spence), his mother, and at her death descended to her heirs at law.
At the close of the evidence for both sides, the judge of the court below directed a verdict in favor of the partitioning as prayed in the petition. Defendant duly filed his motion for new trial on the general grounds, and amended it by adding two special grounds, complaining of the direction of a verdict in favor of plaintiff in the court below. The motion for new trial was denied, and defendant in the court below brings his bill of exceptions to this court, complaining of the judgment denying a new trial.
1. The general grounds of the motion for new trial are not urged before this court, and will not be considered here.
2. The special grounds of the motion for new trial complain that the judgment of the court below directing a verdict for the plaintiff was error for the reason that there were issues of fact which should have been submitted to the jury.
The evidence for the plaintiff in the court below was briefly as follows: Frank Proctor, Tax Commissioner for Grady County, testified that, though he could not find the original tax returns for the years 1908 to 1917, the tax digest books for those years showed that Mrs. W. G. Spence or Mrs. Lula Spence had returned the land here involved for taxes every year from the year following the date of the deed in question to approximately the time of her death. He further testified that, since that time, Mr. W. G. Spence had returned the land until his death. W. G. Bullock testified that he saw the deed either just before or just after the death of Mrs. Lula Spence; that at that time there were no erasures on the deed, and the deed was to Mrs. W. G. Spence; that he again saw the deed just after the death of Mr. W. G. Spence; and that at that time the erasures had been made. John Spence testified that he saw the deed in 1933, some time after the death of Mrs. Lula Spence, and that at that time there were no erasures on the deed, and the deed was to Mrs. W. G. Spence; that three or four years later he saw the deed again, and at that time part of it had been erased. He further testified that he had always heard that the land belonged to his mother. A photostatic copy of the deed is included in the record, and the erasures clearly appear to have been made. There was introduced in evidence a copy of a timber lease from Mrs. W. G. Spence to the Meigs Lumber and Manufacturing Company. This lease bears the date 1909, and the description closely follows the description contained in the deed here in question. All the above evidence is uncontradicted.
The evidence for the plaintiff in error was that Mr. W. G. Spence operated the farm as if it were his own, that he and his family lived there, and that he made improvements on the land. One of the witnesses testified that Mr. W. G. Spence became involved in a lawsuit with an adjoining landowner regarding a land line, and that he believed it was in the lifetime of the first Mrs. Spence. Another witness testified as to a turpentine lease some 20 or 25 years ago, the exact date not being given. He testified that he and his father took a turpentine lease from Mr. W. G. Spence. On cross-examination, he testified that he would not want to swear that they actually took a lease because he could not remember and could not find the lease. Two witnesses, the only surviving representatives of the Thorpe Spence Estate, testified that they remembered going to Pelham with their brothers and sisters to make a deed to W. G. Spence. Several of the witnesses testified that they had never heard of anyone else claiming any interest in the land.
In view of the evidence in the record before us in this case, we must hold that the evidence shows conclusively that the deed in question was altered after its execution. The testimony is that the deed was altered some time after the death of Mrs. Lula Spence and that until her death she exercised the rights and duties of ownership of the land. We realize that at the outset the plaintiff in the court below had the task of overcoming the presumption that the deed was altered before it was executed. Considering all the evidence in this case, it is impossible to escape the conclusion that such presumption has been positively and completely rebutted, and that a finding that the deed was altered after its execution was demanded by the evidence in this case.
2. The plaintiffs in error contend that they had a right to go to the jury under the rules as laid down in Lancaster v. Treadwell, 146 Ga. 81 ( 90 S.E. 710), Bagley v. Kennedy, 85 Ga. 703 ( 11 S.E. 1091), Wolfe v. Baxter, 86 Ga. 705 ( 13 S.E. 18), and other cases. The rule contended for is that, when a person dies in possession of land, his heirs, personal representative, widow under a year's support, etc., or their transferees can make a prima facie case of title in the deceased predecessor merely by showing that he died in possession. Conceding, but not deciding, that this is a correct statement of a rule of law that obtains in this State, it does not aid the plaintiff in error in this case, for the reason that, as is held in the foregoing division of this opinion, title is conclusively shown not to be in the person dying in possession, W. G. Spence in this case. It follows, from what has been said above, the judgment of the court below denying a new trial was not error.
Judgment affirmed. All the Justices concur.