Hicks v. Simpson

190 S.E.2d 73, 229 Ga. 214, 1972 Ga. LEXIS 557
CourtSupreme Court of Georgia
DecidedJune 15, 1972
Docket27161
StatusPublished
Cited by4 cases

This text of 190 S.E.2d 73 (Hicks v. Simpson) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hicks v. Simpson, 190 S.E.2d 73, 229 Ga. 214, 1972 Ga. LEXIS 557 (Ga. 1972).

Opinion

Grice, Presiding Justice.

This appeal arose out of a land registration proceeding which was referred to an examiner and later tried before a jury in the Superior Court of Pulton County.

The complaint as originally filed sought to register in the name of Mrs. C. A. Simpson title to six parcels of land. However, the litigation was confined to four of these parcels, hereinafter referred to as "the Johnson property,” the "Stewart property” and "the Johnson option.”

Objections and defensive pleadings were filed by Barbara Louise Hayes Barbee, Mrs. Simpson’s daughter; Kenneth E. Barbee; Sam E. Hicks; Howard C. Turner; and Frank A. Bowers, Sr. Claims were filed only as to the Johnson property, the Stewart property and the Johnson option, contending that Barbara Louise Hayes Barbee was the "B. L. [215]*215Hayes” named in the deeds in the chain of title to this property. The defendant Barbee claimed in her own right while the claims of the other defendants were derived through deeds from her to them.

The basis for the registration was set forth in the complaint wherein Mrs. Simpson claimed "title by prescription under deed to applicant set out herein and under the deeds to her predecessors in title. Applicant claims title by virtue of purchasing caption property and option in the name of B. L. Hayes, Marie L. Turner and M. L. Turner, all of which are fictitious and do not represent any known person other than applicant, said names having been made up by her to be used solely for the purpose of acquiring and owning property, and not being any other person applicant knew of at the time of said purchases and option and not being purchased for the benefit of any person by said names other than herself.”

Upon referral of the pleadings to an examiner, his final report was filed on September 17, 1969. In response to it the defendants filed a motion for a decree denying registration of the land involved, or in the alternative, to recommit the report to the examiner. Upon a hearing the trial court entered an order on December 8, 1969, overruling the motion for a decree in favor of the defendants "for the present time,” and recommitted the report to the examiner.

An amended final report of the examiner was filed on March 12, 1970, to which the defendants filed exceptions of law and fact.

Thereafter, upon a trial before a jury, a verdict was returned in favor of all the findings of law and fact excepted to; and on October 7, 1971, an order was entered decreeing fee simple title to the disputed parcels to be in Mrs. Simpson.

From this order and decree the defendants have appealed, enumerating error upon both the final decree and the interlocutory order of the trial court overruling their motion for a decree denying registration.

In their brief the appellants have set out three issues [216]*216based upon their enumerations of error, which will be followed herein.

1. The first question presented is: "In a land registration proceeding, when an applicant claims title to land on the basis that the name of the grantee was an alias of hers and the examiner makes no finding on this point, on motion of an opposing party should a decree be entered denying registration?” (Emphasis supplied.)

There is clearly no merit in the contention presented by this question. An inspection of the examiner’s report shows that he did make a finding on this point as to each of the parcels of land involved in the appeal.

With respect to the Johnson property the examiner found as a fact as follows:

"In purchasing the one-half interest in the lands described in the application as Parcels I and II and in accepting the warranty deed executed by John S. Johnson, it was Mrs. Simpson’s intention and purpose to take title in her own right. Mrs. Simpson intended the name B. L. Hayes’ to mean herself, and she used the name (B. L. Hayes’ as an alias and not as the name of any other person.” (Emphasis supplied.)

The examiner made the following finding of fact as to the Stewart property:

"In purchasing the one-half interest in the land and in accepting the warranty deed executed by Mrs. Eileen L. Stewart, it was Mrs. Simpson’s intent and purpose to take and hold title in her own right and she and the scrivener who prepared the deed used the name B. L. Hayes’ as an alias, meaning Mrs. Simpson and not the name of any other person.” (Emphasis supplied.)

The examiner also found as a fact in regard to the Johnson option the following:

"In purchasing a one-half interest in the option (from John S. Johnson) in the name of 'B. L. Hayes’, it was Mrs. Simpson’s intent and purpose to hold in her own right a one-half interest in said option and she used the name B. L. Hayes’ as an alias and not as the name of any other per[217]*217son. The name 'B. L. Hayes’ was a fictitious name adopted and used by Mrs. Simpson in the purchase of said option. Said name did not represent any known person other than applicant.” (Emphasis supplied.)

(a) The "second question” involves six enumerations of error and is really a series of four questions, the first two of which will be treated together. These are stated by the appellants as follows:

"In a land registration proceeding when an applicant claims title on the basis that the name of the grantee was an alias of hers, and the evidence shows that the name of the grantee was that of the daughter of the applicant (using initials rather than a given name), and the uncontradicted and undisputed testimony of the scrivener (and grantor) of the deed is that the daughter was intended as grantee, is the verdict of judgment in favor of the applicant contrary to such evidence and improper as a matter of law?

"Where the uncontradicted testimony of the grantor and scrivener of the deed identifies the grantee in the deed as one individual, is a judgment finding a different grantee proper?”

A reading of the transcript of evidence taken at the examiner’s hearing reveals that the testimony as to identity of the grantee in the deed was not "uncontradicted” or "undisputed.” The evidence was in dire conflict, but was ample to sustain the findings in this respect.

Mrs. Simpson testified that at the direction of Frank A. Bowers, Jr., who was at that time her attorney, business partner and scrivener of the deeds in question, she used a number of "aliases” in purchasing property; that the name "B. L. Hayes” in the deeds was one of those aliases like several others she used in purchasing property; that her legal name had formerly been Hayes but that it did not occur to her that Bowers was using the initials of her daughter in the deeds; that she had no idea of making a gift of the property to her daughter; that when she paid the purchase money notes to Johnson she did not intend to make a gift of that money to her daughter; that it was her [218]*218intention that she would own the property; and that she had owned other property in other aliases and had had no trouble about them.

Testimony as to intent is testimony as to a fact and has probative value. Ashbaugh v. Ashbaugh, 222 Ga. 811, 814 (152 SE2d 888).

There was also testimony that Mrs.

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Bluebook (online)
190 S.E.2d 73, 229 Ga. 214, 1972 Ga. LEXIS 557, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hicks-v-simpson-ga-1972.