Hicks v. Webb

56 S.E. 307, 127 Ga. 170, 1906 Ga. LEXIS 787

• Court: Supreme Court of Georgia
• Decided: December 17, 1906
• Status: Published

Opinion

Be'ck, J.

(After stating the facts.)

1, 2. The assignments of error referred to in the first and second headnotes are sufficiently dealt with there.

3. By the act of the legislature approved December 21, 1897 (Acts 1897, p. 79), it is provided, “That in all cases where an action has been brought for the recovery of land, the defendant who has bona fide possession of such land under adverse claim of title may set off the value of all permanent improvements bona fide placed thereon by himself or other bona fide claimants under whom he claims; and in case the legal title to the land is found to be in the plaintiff, if the value of such improvements at the time of the trial exceeds the mesne profits, the jury may render a verdict in favor of the plaintiff for the land and in favor of the defendant for the amount of the excess of the value of said improvements over the mesne profits.” Under the construction placed upon that extract of the act above quoted, we can not sustain the following charge of the court, which was duly excepted to by the plaintiff in error, to wit: • “If the defendant made improvements on the land, not before, but since the death of John Webb [the life-tenant], then the value of such improvements should be deducted from the rents or damages, if any, to the freehold. Though if the improvements exceed the rents and damages, it can not be set off against the land itself.” The effect’ of this charge would confine the jury to a consideration of the value of the permanent improvements placed upon the land in controversy subsequently to the death of the life-tenant, John Webb, and that only to the extent of the value of the rents and damages; whereas the act referred to distinctly allows the defendant in actions like this to set off the value of “all permanent improvements” which, he'may have placed upon the land while bona fide in possession thereof. It was the intention of the legislature which enacted the law referred to that those who bona fide went upon land, and bona fide expended their money, time, and labor in erecting permanent improvements upon the same, should not be ejected therefrom without other compensation than mesne profits of the land where such mesne profits are less in value than the permanent improvements made. Mills v. Geer, 111 Ga. 275.

4. The court did not err in refusing the requests to charge which ■are set out in the statement of facts. These requests do not contain in themselves correct, accurate, and appropriate statements of the principles of law applicable to the evidence in this case. But .a complaint of the same general complexion and nature as that made in criticising the court’s refusal of the requests to charge is contained in another part of the motion for a new trial, and in ■substance it is to the effect that the court wholly failed to charge the jury that they could find for the defendant under any view they might take of the testimony in this case, thus virtually telling the jury that under no view of the evidence could they find for the ■defendant.

Under the authority of the case of Lamar v. Pearre, 90 Ga. 377, ■and cases laying down a similar doctrine, we can not otherwise hold than that if John Webb, assuming to act as trustee for his •children, sold the fee of the lands in dispute and received the purchase-money of the whole, and afterwards invested a part of the purchase-money in other lands, and the remaindermen after his death appropriated the lands so purchased to their own use, with knowledge of all material facts, their so doing was a ratification •of the sale and conveyance of their estate by one assuming to act as their trustee, and they would be estopped from recovering from "the purchaser their remainder interest thus sold.' If the contentions of the plaintiff in error be true, while John Webb in selling ■the Johnson county lands had no legal authority whatever to sell ■and convey more than his estate for life, he sold the fee and reinvested some of the purchase-money in the Lowndes county lands,— a transaction whereby the remaindermen, according to evidence introduced by the plaintiff, have received substantial benefits and •advantages; and the question is, if the jury should believe that with •a part of the proceeds arising from the sale of the fee in the lands in Johnson county the Lowndes county lands were purchased, and 'they should further be convinced from the evidence that the last-mentioned lands were of equal or greater value than the former, and that the remaindermen were in the possession and enjoyment of those Lowndes county lands, knowing all the material facts as to . the sale of the lands in Johnson county; and the purchase with the proceeds thereof of the lands held by them at the time of the institution of this suit, should they not be given appropriate instructions under which they might make a finding in accordance with the ruling which we have made in regard to this branch of the case? An affirmative answer to this question necessarily follows an unqualified acceptance of the ruling in the case last referred to. Our attention has not been called to any decision rendered by this court which either restricts or modifies the doctrine of that case. Neither the case of Taylor v. James, 109 Ga. 327, nor the cases of Luquire v. Lee, 121 Ga. 624, and Bazemore v. Davis, 55 Ga. 506, cited by counsel for defendant in error, are in conflict with what we have ruled. And the negative pregnant in the last part of the decision in the case of Smith v. McWhorter, 123 Ga. 287, is strongly persuasive of the correctness of the conclusion we have reached.

5. The fifth headnote announces a well-established rule of practice. Johnson v. Perry, 121 Ga. 68; Heard v. Tappan, Id. 437.

Judgment reversed on main bill, affirmed on cross-bill of exceptions.

All the Justices concur, except Evans, J., disqualified.