126 S.E.2d 769

ADAMS et al. v. ADAMS.

21633.Supreme Court of Georgia.ARGUED MAY 14, 1962.
DECIDED JUNE 12, 1962.

1. Statutory partition proceedings are reviewable by the Court of Appeals, but where there is also involved an issue as to whether one or more parties has title to a part of the property in controversy, the case is properly before this court for review.

2. Where a prima facie case was not admitted by the answers of the defendants but instead, a material allegation was contradicted, the trial judge did not err in denying the defendants the right to open and conclude argument to the jury.

3. A trial judge’s charge that possession by a tenant in common was not adverse to his cotenant unless the latter was put on notice as to the adverse nature of such possession was appropriate

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where there was considerable evidence submitted on the issue.

4. The weight of testimony and credibility of witnesses are peculiarly and exclusively questions for the jury, which is not bound in every case to accept evidence as true, although it is not contradicted by other direct evidence, when it is in conflict with reasonable inferences that may be drawn from proven facts and circumstances.

ARGUED MAY 14, 1962 — DECIDED JUNE 12, 1962.
Partition, etc. Baldwin Superior Court. Before Judge Carpenter.

Ben B. Adams, Jr., filed a statutory partition action against Clifton Adams, alleging in his petition that the lands described therein were owned by them as tenants in common, in equal shares, and praying the appointment of partitioners to divide same. The court entered an order appointing partitioners and a writ of partition was duly issued. The partitioners made a return in which they reported that said lands could not be divided in kind and recommended a sale and division of the proceeds. Within the time allowed by law, Clifton Adams filed his objections and defenses, as twice amended, which alleged in substance:

Ben and Clifton Adams became the owners, as tenants in common in unequal shares, of said lands under a deed from Mrs. Freddie Bowden, dated May 12, 1925, in which the consideration was “the cancellation of the indebtedness due by” Mrs. Bowden to Clifton Adams and “the sum of $1,250, in hand paid,” this cash being paid her by both of said parties (Ben and Clifton Adams). The indebtedness owed Clifton Adams which was canceled as a part of the consideration was one of $2,000. $956.89 of the $1,250 cash was borrowed by Clifton and Ben Adams from The Exchange Bank upon the security of the land and the remaining $293.11 of the $1,250 was paid by Clifton Adams. Further, Clifton repaid all of the indebtedness of himself and of Ben Adams, Ben Adams paying no part thereof. On some date prior to 1934, Ben Adams sold his interest in the land to Lucile Adams for $250 and she paid him the purchase money therefor, although no deed was ever made.

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In his objections and defenses as amended, Clifton Adams prayed that equity assume jurisdiction and adjudge him to own an undivided 85.5 percent interest in said lands; that he have judgment against Ben Adams for one-half of their debt to The Exchange Bank which he had repaid with interest from date of payment; that the court adjudge that he has a lien on the remaining 14.5 percent to secure the payment of such judgment; that Miss Lucile Adams be adjudged the owner of said 14.5 per cent, subject to such lien, and that said Lucile Adams be made a party defendant.

In his answer as amended Clifton Adams alleged that he and the plaintiff, Ben Adams, were deeded the lands by Mrs. Bowden, and expressly denied that Ben Adams took a fifty percent interest in the lands under the deed, or had ever acquired such interest as alleged in the plaintiff’s petition. Thereafter, Lucile Adams was made a party defendant and filed her answer in which she alleged she had purchased Ben Adams’ interest in the land.

After a jury was selected, empaneled and sworn to try the case but before any evidence was introduced, the defendants moved the court to allow them the opening and conclusion on the ground that a prima facie case for the plaintiff had been admitted in the amended defensive pleadings. This motion was overruled and evidence was introduced by both sides, and the plaintiff was allowed to open and conclude.

The evidence as to every issue made by the pleadings was in conflict. The plaintiff, Ben B. Adams, Jr., testified that he and his brother Clifton purchased the lands, subject of the partition proceedings, from their aunt, Mrs. Freddie Bowden, in the year 1925; that he understood it was bought by them on a “50-50 basis”; that Clifton did not disclose to him that Mrs. Bowden was indebted to him, and that at the time the land was bought he did not know she owed Clifton any debt; that when the deed was executed it was delivered to his brother and he did not see it; that the consideration of $1,250 was to be equally paid by him and his brother, of which amount $1,000 was borrowed by them jointly, and their security deed to the property was given the bank.

He related that Miss Lucile Adams was in complete charge

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of Clifton Adams’ business at the time the land was purchased and for several years subsequent to that time (a fact Lucile Adams corroborated, stating the years of her control of Clifton’s business were from 1925 through 1928); that while Miss Lucile was managing Clifton’s business, and with the knowledge and consent of Clifton, he made weekly payments to her to be transmitted to the bank and applied on the loan; that these payments, about 52 in number, were between $12 and $15 each and amounted to a total of $650. In this connection, he testified Clifton was present when 75 percent of the payments were made by him. He further testified that Clifton had managed the land since it was bought; that Clifton had collected the rents and paid the taxes; that since 1949 he had given in the property and paid his part of the taxes because there were, at that time and subsequently thereto, no rents derived from the farm. He denied that he had ever agreed to sell, or that he had verbally sold, his sister Lucile Adams his interest in the lands, and had accepted no payment from her of money for his share in the land. He also gave evidence of spending about $125 or $150 on the lands and in setting out peach trees on the same, but subsequently his brother Clifton excluded him from possession of the farm.

Mrs. Ben B. Adams, Jr., testified to having married him in 1931; that she was familiar with the property; that about 18 years before the trial, but not earlier, both Miss Lucile Adams and Clifton Adams had undertaken to negotiate with her husband through her for the purchase of his interest in the lands, but there was no agreement reached and no sale made. She corroborated her husband’s testimony as to the payment of taxes over a period of years from 1949, and to rents from the place having been applied to taxes prior to that time.

Clifton Adams introduced the deed from Mrs. Freddie Bowden to him and Ben Adams in evidence. It recited: “Witnesseth: That the said Mrs. Freddie Bowden, for and in consideration of the cancellation of the indebtedness due by her to Clifton Adams (one of the said parties of the other part) and in consideration of the sum of twelve hundred and fifty ($1,250) dollars, in hand paid, at and before the sealing and deliver[y]

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of the presents, the receipt whereof is hereby acknowledged, this cash being paid her by both of said parties of the other part, she has granted, bargained, sold and conveyed and by these presents does grant, bargain, sell and convey unto the said Clifton Adams and B. B. Adams, Jr., their heirs and assigns, the following described property.” (Here followed a description of the property in question.)

He also submitted in evidence the following checks:

Check drawn by Clifton Adams on Exchange Bank, dated December 20, 1921, payable to J. H. Lawrence, Tax Collector, Baldwin County, for $80.81, endorsed by J. H. Lawrence, Tax Collector, and paid by The Exchange Bank on December 21, 1921.

Check drawn by Clifton Adams on Exchange Bank, dated December 31, 1921, payable to J. A. Moore, for $44.20, endorsed by J. A. Moore, and paid by The Exchange Bank on January 5, 1922.

Check drawn by Clifton Adams on Exchange Bank, dated November 26, 1921, payable to Mrs. A. G. Bowden, for $50, endorsed by Mrs. A. G. Bowden, and paid by The Exchange Bank on December 21, 1921.

Check drawn by Clifton Adams on Exchange Bank, dated October 2, 1922, payable to Mrs. A. G. Bowden, for $2.75, endorsed by Mrs. A. G. Bowden, and paid by The Exchange Bank on October 2, 1922.

Check drawn by Clifton Adams on Exchange Bank, dated October 31, 1922, payable to Mrs. A. G. Bowden, for $25, endorsed by Mrs. A. G. Bowden, and paid by The Exchange Bank on October 31, 1922.

Check drawn by Clifton Adams on Exchange Bank, dated December 17, 1921, payable to Mrs. A. G. Bowden, for $103.54, endorsed by Mrs. A. G. Bowden, and paid by The Exchange Bank on December 22, 1921.

Check drawn by Clifton Adams on Exchange Bank, dated December 4, 1922, payable to Mrs. A. G. Bowden, for $40, endorsed by Mrs. A. G. Bowden, and paid by The Exchange Bank on December 4, 1922.

Check drawn by Clifton Adams on Exchange Bank, dated February

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7, (?), payable to Mrs. A. G. Bowden, for $10, endorsed by Mrs. A. G. Bowden, and paid by The Exchange Bank on February 13, 1923.

Check drawn by Clifton Adams on Exchange Bank, dated June 30, 1922, payable to Mrs. A. G. Bowden, for $30, endorsed by Mrs. A. G. Bowden, and paid by The Exchange Bank on July 6, 1922.

Check drawn by Clifton Adams on Exchange Bank, dated September 23, 1922, payable to Mrs. A. G. Bowden, for $75, endorsed by Mrs. A. G. Bowden, and paid by The Exchange Bank on October 3, 1922.

The defendants introduced in evidence a security deed and promissory note to The Exchange Bank, both instruments executed and made by Clifton and Ben Adams for $1,000 principal and $43.11 interest, dated May 21, 1925, and due December 1, 1925. There were various credits noted on the back of the note, but none indicated by whom the payments were made.

Clifton Adams, testified that the lands subject of the partition proceedings consisted of 109 acres; that the consideration of the deed from Mrs. Bowden to him and his brother was a $2,000 or $2,200 debt Mrs. Bowden owed him and the $1,250 referred to in the deed as having been paid partly by him and Ben Adams. He admitted that he did not apprize Ben of the fact that Mrs. Bowden owed him $2,000, or that he held a security deed against the lands for $250, or that a cancellation of a debt was part of the consideration of the deed. He did state that Ben should have known his aunt owed him the money. Clifton Adams admitted the reason he had Ben Adams to put up money was that Ben wanted to buy a one-half interest in the lands.

The circumstances under which the deed was drawn, as revealed by the witness’s testimony, were that he had the deed drawn, executed and, so far as he remembered, returned to him, and that, so far as he knew, his co-purchaser Ben Adams was never shown the deed. Clifton Adams explained that he could not find any more checks evidencing loans to Mrs. Bowden than those amounting to $461.30 because his sister Lucile had kept them, and he did not know what had become of them.

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He admitted that he could not state in what amounts or at what times he had made loans to Mrs. Bowden other than those shown by the checks aggregating $461.30. In his testimony he did not settle on what amount was actually owed him by Mrs. Bowden, stating at one point in his testimony that it was $2,000 or $2,200 and at another that the debt amounted to around $2,000. His testimony revealed that the checks were all given to Mrs. Bowden, or for her benefit, prior to the time she gave him the warranty deed on May 12, 1925. He was positive that he paid the full amount of the note to The Exchange Bank amounting to $1,000 ($956.89 principal and $43.11 interest), and that Ben Adams paid no part of it. As to the possession of the lands he gave as his evidence that he had rebuilt and used a building on the place as his place of business; that he had returned the land for taxes in his own name; that he had paid the taxes on the same, partly from his own funds and partly from rents realized from the place; that Ben had only spent about $125 to $150 in repairs of a house on the lands, and had planted some peach trees on the same; that he had never told Ben to stay off the place, but that Ben should have known he was holding the land adversely to him.

Miss Lucile Adams testified: that, prior to the deed from Mrs. Bowden to her brothers, Mrs. Bowden owed Clifton about $2,250; that she had no documents pertaining to the sale of the land other than those introduced in evidence; that she burned all the checks given by Clifton to Mrs. Bowden or for her benefit except those introduced in evidence, and in this connection she did not attempt to specify when or in what amount any loans were made to Mrs. Bowden; that she was not informed as to the particulars of the transaction between Clifton and Mrs. Bowden; that for five years she kept Clifton’s books, and managed his business in the years 1925-1928. She denied Ben made any payments to her to be applied on the note to The Exchange Bank.

The witness gave as her evidence that in 1934 Ben Adams “borrowed” $250 from her and at the time said, “you can take my lands for it”; that the lands referred to were those involved in the case. The witness testified that she considered that she went into possession of Ben’s part of the property under

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this agreement. Later, in her testimony, she related that she thought he would pay the loan of $250 to her, but that he never did.

Other evidence not material to the determination of the case was submitted, but need not be here set forth.

The trial judge submitted five written questions to the jury for a special verdict of the facts only. The three pertinent ones were: “1. How much did Mrs. Freddie Bowden owe Clifton Adams at the time of the delivery of the deed dated May 12, 1925 made by Mrs. Freddie Bowden to Ben B. Adams, Jr., and Clifton Adams?” “3. What was the amount of money, if any, left by Ben B. Adams with Miss Lucile Adams to be by her paid to The Exchange Bank on the loan of Ben B. Adams, Jr., and Clifton Adams?” “4. What was the total amount of money paid by Clifton Adams to The Exchange Bank on the loan to Ben B. Adams, Jr., and Clifton Adams?”

In their verdict, the jury gave $250 in answer to question 1; the defendants contend the correct amount was $2,000. The jury gave $650 in answer to question 3; the defendants contend that no money was so left. The jury gave $443.11 in answer to question 4; the defendants contend the correct amount was $1,050.

Based on the jury’s finding of fact, judgment was entered finding that Ben B. Adams, Jr., owns 31.897 percent and Clifton Adams 68.103 percent of the lands.

Lucile Adams filed her motion for new trial and later amended her original motion by adding two special grounds: that the court erred in failing to grant the motion that the defendants be allowed to open and conclude since their amendment had the effect of shifting the burden of proof and admitting a prima facie case; that the court erred in charging the jury on the law of adverse possession since such issue was not presented by the pleadings or supported by the evidence.

Clifton Adams likewise filed his motion for new trial and amended such motion by adding eleven special grounds, the first two of which were identical to those alleged by Lucile Adams and the others were substantially as follows: that the jury’s finding that Mrs. Freddie Bowden owed Clifton Adams $250

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at the time of delivery of the deed dated May 12, 1925, made by Mrs. Freddie Bowden to Ben and Clifton Adams was contrary to evidence and without evidence to support it; that the jury’s finding that the amount of money left by Ben Adams with Lucile Adams to be by her paid to The Exchange Bank on the loan to Ben and Clifton Adams amounted to $650 was contrary to evidence and without evidence to support it; that the jury’s finding that the total amount of money paid by Clifton Adams to The Exchange Bank on the loan to Ben and Clifton Adams was $443.11 was contrary to evidence and without evidence to support it; that all of these findings were decidedly and strongly against the weight of evidence.

From the denial of their motions for new trial the defendants bring their writ of error to this court.

G. L. Dickens, Jr., for plaintiffs in error.

W. George Thomas, contra.

QUILLIAN, Justice.

1. The initial question for decision is whether this court has jurisdiction. Statutory partition proceedings are reviewable by the Court of Appeals (Nash v. Williamson, 212 Ga. 804, 96 S.E.2d 251; Anderson v. Anderson, 151 Ga. 518, 107 S.E. 334), but where, as in the present case, the quantum of interest of the tenants in common is not the only issue, but there is also involved the issue as to whether one or more of the parties has title to a part of the property, the case is properly brought to this court for review. Cates v. Duncan, 178 Ga. 748, 749 (174 S.E. 380). See also Newton Mfg. Co. v. White, 47 Ga. 400, 404.

2. The first special ground contained in each of the defendants’ motion for new trial complains that the trial judge refused to allow the defendants to open and conclude the argument to the jury. They contend their respective answers admitted a prima facie case for the plaintiff, and that under the rules of practice they were entitled to the opening and conclusion. I Wren v. Wren, 199 Ga. 851, 857 (36 S.E.2d 77), it is held that where the defendant in a processioning case admits the plaintiff has paper title to the quantum of interest he claims in the lands he seeks to have partitioned, but sets up as a defense the contention that the defendant holds interest in the

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lands claimed by the plaintiff under a perfect equitable title, the answer admits such a prima facie case in the plaintiff as entitles the defendant to the opening and conclusion.

The principle pronounced in the Wren case, supra, is not applicable to the case sub judice. Here, the petition alleged the plaintiff owns a one-half interest in the land he seeks to have partitioned. The answers of both defendants deny the allegation.

The answer of the defendant Clifton Adams alleged that, under the provisions of a deed from their common grantor, the quantum of interest in the land conveyed to him was 85.5 of the whole and only 14.5 interest was deeded to the plaintiff. It is apparent a prima facie case was not admitted, and the trial judge ruled correctly in permitting the plaintiff, upon whom rested the burden of proving his case as laid in the petition, to open and conclude the argument to the jury.

3. The second special ground of the motion for new trial complains that the trial judge instructed the jury that possession by a tenant in common was not adverse to his contenant unless the latter was put on notice as to the adverse nature of such possession. The criticism of the charge was that it was not applicable to the issues made by the pleading and evidence. There was considerable evidence submitted on the issue, and the charge was appropriate.

4. The movant Clifton Adams denominates certain numbered paragraphs of his motion for new trial as special grounds. However, he so treats them in his brief and they are in fact mere elaborations of the general ground that the verdict is not supported by evidence. In a brief of much more merit than his case, counsel for the defendants argues that the evidence demanded a verdict in favor of Clifton Adams as to several issues.

We have not overlooked the argument of Clifton Adams that the evidence demanded a finding that the debt due by Mrs. Bowden to him, which constituted a part of the consideration for the deed from Mrs. Bowden to him and his tenant in common, Ben B. Adams, Jr., was $2,000 and not $250 as found by the jury. It is true that he testified, without direct contradiction, that he loaned Mrs. Bowden $2,000 or $2,200, and at another point in

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his testimony related the loan was approximately $2,200. We have also considered the testimony of Miss Lucile Adams that it amounted to $2,250.

According to the testimony of these two witnesses the $2,000, $2,200 or $2,250 due by Mrs. Bowden to Clifton was made up of various small loans made by him to her. They were not able to recall the time, amounts or circumstances under which the small loans were made. The only acknowledgment by Mrs. Bowden that she owed Clifton any particular amount was a security deed for $250. The defendants were not able to produce records of or testify concerning the dates or amounts making up the alleged aggregate amount which Clifton Adams claimed to have advanced Mrs. Bowden. He admitted never having revealed the existence of the loan to Ben Adams, his tenant in common, or having apprized him of the fact that it constituted a part of the consideration for the deed. And according to the testimony of the latter, Miss Lucile Adams informed him before the execution of the deed that the title to the lands was clear. It was admitted she was in full charge of Clifton Adams’ business. Ben Adams swore he would never have purchased the property if he had known of the existence of the loans.

The only tangible evidence as to any advance made to Mrs. Bowden by Clifton Adams were checks given in 1921-1923 aggregating $461.30, and some of them were not made payable to her. In addition to this, over half of the amount ($234.35) of the checks was paid before a loan deed made by Mrs. Bowden to Clifton Adams on December 27, 1921. Such deed further provided that it was given as security for a debt of $250 as evidenced by a promissory note of the same date and “also any and all renewals of the same and all indebtedness or obligations that I, we, or either of us, may make or incur with or to said Clifton Adams not to exceed in amount the sum of $300 evidenced by promissory notes or other writings, or by open accounts charged on the books of said Clifton Adams, or otherwise.” It was a reasonable deduction that the deed covered the amount of her indebtedness to him when the warranty deed was made.

“`The weight of testimony and the credibility of a witness are peculiarly and exclusively, under the law of Georgia, questions

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for the jury.'” Hancock v. Wilson, 214 Ga. 60, 61 (2) (102 S.E.2d 551), and cases cited therein. The jury is not “bound in every case to accept evidence as true although it is not contradicted by direct evidence. It may be inherently subject to discredit, or so from the circumstances.” Lewis v. Patterson, 191 Ga. 348, 357 (12 S.E.2d 593); Stow v. Hargrove, 203 Ga. 735, 736 (8) (48 S.E.2d 454).

The evidence adduced upon the trial, together with reasonable inferences that could be legitimately drawn by the jury, amply authorized the finding of the jury, on each of the issues submitted to them.

Judgment affirmed. All the Justices concur.