Opinion
15851.
JUNE 12, 1947.
Complaint for land. Before Judge Humphrey. Emanuel Superior Court. March 15, 1937.
I. W. Rountree, for plaintiffs in error.
D. A. Bragg, Charles G. Reynolds, and Alfred Herrington, contra.
1. The evidence amply supported the verdict.
2. Estoppels by admissions made in pleading apply only between parties and privies to the suit or litigation in which the admissions relied on as an estoppel were made.
3. Newly discovered evidence which is merely cumulative is not good cause for a new trial.
No. 15851. JUNE 12, 1947.
This is an equitable action brought by all the heirs at law of M. H. Pierce against J. P. Walea and Mrs. J. P. Walea, seeking the recovery of described lands. The allegations of the petition are, in substance, as follows: M. H. Pierce acquired the property in dispute by warranty deed on March 18, 1897, and thereafter remained in possession of the land until his death in 1924. On March 4, 1897, Pierce borrowed money from one Redding, executing to Redding, as security for the loan, a conveyance in the form of a warranty deed, but actually made for the purpose of securing the indebtedness. Thereafter Pierce remained in possession of the property. In 1914 Pierce repaid this loan, and at his direction and request Redding executed a warranty deed to Luphelia Pierce. This deed was recorded on April 14, 1914. In 1924 Pierce died in possession of the land, and the plaintiffs, who are all his children and heirs at law, have ever since remained in possession of the land.
The plaintiffs contended that the deed executed to Luphelia Pierce was a crude method employed by their father, M. H. Pierce, to divest Redding of title to the property upon repayment of the loan; that, in fact, Luphelia Pierce was the name of a deceased child of M. H. Pierce, who had died in infancy, and who was dead at the time of the execution of this deed.
The plaintiffs further contended that in 1937, J. P. Walea, knowing the condition of the record title to this property, procured a woman, who was his servant, to pose as Luphelia Pierce and to execute to Mrs. J. P. Walea a purported warranty deed to this property. This deed, upon which the defendants relied for title, the plaintiffs attacked as being fraudulent and a forgery.
On the trial, the jury returned a verdict for the plaintiffs. The defendants filed a motion for new trial, which as amended was overruled by the trial judge, and to this judgment the defendants excepted.
1. On the trial of this case there was one real issue — the existence or non-existence of Luphelia Pierce. As to this issue the evidence was in sharp conflict. Without attempting to review all the evidence, we think it sufficient to say that the jury was authorized to find for either the plaintiffs or the defendants. A number of witnesses testified that they had lived in the vicinity of the disputed land all their lives; that they knew M. H. Pierce, his wife, and all his children; that the only Luphelia Pierce they had ever heard of was M. H. Pierce's child, who had died some forty or fifty years ago when only one or two years of age; that no person known as Luphelia Pierce, other than this child, had ever lived in the home with M. H. Pierce, or in the community. J. P. Walea, one of the defendants, testified that Luphelia Pierce was a woman who lived in M. H. Pierce's home for several years and held herself out to be his wife; that this woman was known in the community as Luphelia Pierce; that he had had a number of business transactions with her; that on one occasion he talked to Luphelia Pierce in the presence of M. H. Pierce with reference to purchasing the timber on the property in dispute, and he did purchase the timber from her under an oral contract; that later he met Luphelia Pierce in Savannah, Georgia, and she offered to sell him the land in litigation; that arrangements were made for him to meet her to complete the sale, and the following day he met her at Millen, Georgia, and that night took her to the home of a justice of the peace, where the sale was consummated and the deed executed and delivered. There were three witnesses to the deed. Two of them testified at the trial. The justice of the peace testified that a colored woman, unknown to him, executed the deed; that this woman represented herself to be Luphelia Pierce. The other witness testified that the woman who executed the deed had been known by him for a number of years; that she was known as Luphelia Pierce and lived on J. P. Walea's farm.
The jury having resolved the issue in favor of the plaintiffs, and there being ample evidence supporting their finding, we can not disturb their verdict.
2. The defendants relied upon estoppel, offering in evidence the proceedings in two prior actions. One was an equitable petition, brought in the name of J. P. Walea and Luphelia Pierce against B. F. Futch and Mrs. B. F. Futch, seeking to enjoin the defendants from trespassing upon the lands involved in the present litigation. In this prior petition it was alleged that Luphelia Pierce owned the land in dispute, and that J. P. Walea held a lease to the timber. This petition was verified by M. H. Pierce, purporting to act as agent for Luphelia Pierce. The other suit was an injunction, brought in the name of Luphelia Pierce against the Tax Collector of Emanuel County, and sought to enjoin the collection of taxes. It was alleged in the petition that the land in dispute was owned by Luphelia Pierce. This petition was also verified by M. H. Pierce, purporting to act as agent for Luphelia Pierce.
Although the foregoing might properly have been considered by the jury as admissions, they were not such admissions as would amount to an estoppel. "Estoppels by admissions made in pleading apply only between parties and privies to the suit or litigation in which the admissions relied on as an estoppel were made." Murray County v. Pickering, 198 Ga. 354 ( 31 S.E.2d 722); Harris v. Amoskeag Lumber Co., 101 Ga. 614 ( 29 S.E. 302); Koplin v. Shartle Bros. Machine Co., 150 Ga. 509 (3) ( 104 S.E. 217).
Counsel for the plaintiffs in error relies upon, and cites Anderson v. Clark, 70 Ga. 362 (3); Cheney v. Selman, 71 Ga. 384 (2); Youngblood v. Youngblood, 74 Ga. 614; Long v. Lawson, 7 Ga. App. 461 ( 67 S.E. 124); City of Savannah v. Monroe, 22 Ga. App. 190 ( 95 S.E. 731). An examination of these cases will reveal that, where an estoppel was relied upon on the basis of admissions made in former pleadings, the entire litigation was between the same parties, or their privies, related to the same subject-matter, and was invoked by one party against the opposite party.
We think it clear that the plaintiffs were not estopped in this case.
3. One ground of the amended motion relates to newly discovered evidence, the supporting affidavits of three witnesses being to the effect that they were acquainted with a woman known as Luphelia Pierce, who had resided in the community for several years, and was well known to the affiants. This evidence was merely cumulative of that offered upon the trial. Similar evidence, by a number of witnesses offered by the defendants, is contained in the record. "To render alleged newly discovered evidence available as cause for a new trial, it should appear that the evidence itself is newly discovered, not merely that certain named witnesses by whom the facts can be proved were unknown until after the trial." Burgess v. State, 93 Ga. 304 ( 20 S.E. 331). "Beginning with Roberts v. State, 3 Ga. 310, it has been repeatedly held by this court that newly discovered evidence which is merely cumulative, that is, tending to establish a fact in relation to which there was evidence upon the trial, is not good cause for a new trial." Jinks v. State, 117 Ga. 714 ( 44 S.E. 814); Edge v. State, 200 Ga. 257 ( 36 S.E.2d 673). The alleged newly discovered evidence in this case was not such as would require a new trial.
The foregoing rulings are controlling on all the special grounds of the amended motion for new trial. No error was committed in overruling the motion for new trial.
Judgment affirmed. All the Justices concur.