(105 S.E.) son, 45 Fla. 356, 33 South. 997. Cases dealing Error from Superior Court, Macon Counwith bonds which had been issued and sold to ty; Z. A. Littlejohn, Judge. innocent purchasers are not applicable to the issue involved in the case at bar. We are aware that decisions have been made in other jurisdictions seemingly not in harmony with the ruling we here make. If they cannot be differentiated from the case at bar by reason of the mandatory require ments of our statute in respect of notice of elections for bonds, then we cannot concur in such decisions. It follows, of course, from what we have Suit by E. H. Norris against C. H. Richardson to recover land. Judgment granting plaintiff insufficient relief, and he brings er ror. Affirmed. J. J. Bull & Son, of Oglethorpe, for plaintiff in error. Jule Felton, of Montezuma, and R. L. Greer, of Oglethorpe, for defendant in error. GEORGE, J. E. H. Norris brought suit said, that the judgment of the Court of Ap-in Macon superior court against Dr. C. H. peals is affirmed. Richardson, to recover one-third undivided interest in a lot in the city of Montezuma. The plantiff claimed title as an heir at law of his mother, Mrs. Nannie L. Norris, who died seized and possessed of the land. The defendant filed an answer, alleging that he purchased the lot at a tax sale, in good faith and for value, and that he in good faith placed certain improvements upon the land. He alleged that the value of the permanent improvements at the time of the trial exceeded the mesne profits, and prayed for a judgment for the amount of the excess of the value of the improvements over the mesne profits, as provided by the act approved December 21, 1897 (Civil Code of 1910), § 5587. On the trial of the case the court instructed the jury to return a verdict for the plaintiff for onethird undivided interest in the land, and submitted the issue as to mesne profits and the value of the improvements to the jury. The jury in its verdict fixed the value of the land at $750, the amount of the mesne profits at $72, and the value of the improvements placed upon the land by the defendant at $2,250. Upon this verdict a judgment and decree, as provided by the act of 1897, and as prayed by the defendant, was entered. The plaintiff made a motion for new trial, which was overruled and he excepted. Where in an action for land the defendant pleaded that he was in possession of the land bona fide under adverse claim of title, and prayed that he be allowed to set off the value of all permanent improvements placed thereon by himself, under the Civ. Code 1910, § 5587, an instruction: "In general, good faith means without notice, as well as for a valuable consideration. It does not mean that the purchas-motion for new trial error is assigned upon er must have made every possible search to discover whether or not his title was bad"-is not subject to the criticism that it is contrary to the statute and strongly in favor of the de fendant. 3. Improvements -Plaintiff cannot recover increase of income from defendant's improvements in good faith. Where in an action for land the defendant is bona fide in possession under adverse claim of title, the mesne profits are to be assessed upon the value of the property as it stood when the defendant's title accrued, and the plaintiff is prohibited from recovering as mesne profits the increase of income resulting from the improvements made by the defendant in good faith. 4. Sufficiency of evidence. The evidence authorized the verdict, and no sufficient reason has been shown for granting a new trial. [1] 1. In the first special ground of the the admission in evidence of a mortgage executed by Nannie L. Norris to J. E. De Vaughn on the lot in controversy. The defendant prayed that the plaintiff be required to account to him for one-third of the sum of money paid by him in discharge of the mortgage. In his charge to the jury the court eliminated this issue, and instructed the Jury that the defendant was not entitled to the recovery as prayed. In another ground of the motion error is assigned upon the admission in evidence of the sheriff's deed under which the defendant claimed. Upon the issue of title the court directed a verdict in favor of the plaintiff. If it be conceded that both the mortgage and the deed were inadmissible, the foregoing rulings of the court rendered their admission harmless. [2] 2. Error is assigned upon the following charge of the court to the jury: "In general, good faith means without no- The rule is well established. Lee v. Humtice as well as for a valuable consideration. It phries, 124 Ga. 539, 52 S. E. 1007 (1). does not mean that the purchaser must have [4] 4. Neither do the remaining assignmade every possible search to discover wheth-ments of error upon the charge of the court er or not his title was bad." The charge excepted to related to the claim of the defendant that he was in possession of the land bona fide under adverse claim of title, and that he had placed thereon permanent improvements. It is insisted that the charge is contrary to the statute and strongly in favor of the defendant. In Murchison v. Green, 128 Ga. 339, 345, 57 S. E. 709, 712 (11 L. R. A. [N. S.] 702), it was said that, as the defendant in that case "could not in any sense be treated as a purchaser for value," he could not claim the benefit of the act of 1897. Even if the act limits the right to claim its benefits to purchasers for value (which we do not rule-cf. Hicks v. Webb, 127 Ga. 170, 173, 56 S. E. 307) the court specifically instructed the jury that the purchaser must have purchased without notice "as well as for a valuable consideration." Nor can the language of the act be construed to limit the right to claim its benefits to a purchaser who has "made every possible search to discover whether or not his title was bad." Under the act, the good faith of the purchaser, or the defendant who has possession, is not necessarily destroyed by error of judgment or the failure to exercise all possible diligence. The charge given was not "strongly in favor of the defendant." It was perhaps more favorable to the plaintiff than he was entitled to have under the statute. [3] 3. Error is assigned upon the following charge of the court: "Now, in fixing the rent, it is not to be fixed by the present status of the property as it stands to-day, but it is to be fixed at the rate, under the evidence, that the jury finds to be the rental value of the property as it was prior to the placing upon that property of any improvements by Dr. Richardson. You are to determine from the facts the condition of that property before Dr. Richardson had ever placed any improvements upon it himself, and what would be the rental value of that property in that condition, eliminating and not to include the improvements he had put on it, but the property without these improvements." and upon the refusal of the court to instruct the jury as requested show cause for reversal, nor are they of such character as to require discussion. The evidence authorized the verdict. BECK, P. J. [1] 1. The evidence in this case demanded a verdict for the defendant on the ground set up as a defense to the action, that the defendant had acquired a good prescriptive title to the land in controversy as against the plaintiffs before the bringing of the suit; and accordingly the court did not err in directing a verdict for the defendant. This charge was applied to the contention of the defendant that he was bona fide in possession of the land under adverse claim of title, and that he had placed permanent improvements thereon in good faith. Thus applied, the charge correctly set forth the law governing the recovery of mesne profits. In such cases mesne profits must be estimated upon the rental value of the land without the improvements placed thereon by the defendant bona fide in possession thereof. [2] 2. Evidence tending to show the char JONES v. STATE. (No. 2117.) (Supreme Court of Georgia. Dec. 18, 1920.) (Syllabus by Editorial Staff.) 1. Homicide 218-Dying declarations be submitted on a prima facie case. EHRLICH v. JONES. (No. 11692.) (Court of Appeals of Georgia, Division No. 1. Dec. 17, 1920.) (Syllabus by Editorial Staff.) 1. Landlord and tenant 271-On trial of claim to property distrained, forthcoming bond and entry of levy admissible. On trial of a claim to property levied on may under a distress warrant, the claimant's forthcoming bond and the entry of levy upon the distress warrant were admissible to show the A prima facie case is all that is necessary to carry dying declarations to the jury; it being an issue of fact whether they were made in the immediate prospect of death. 2. Homicide 203 (2)-Relative to dying declarations, expression of belief in dying condition unnecessary. It is not necessary that the person whose statements are sought to be introduced as dying declarations should express himself as believing that he is in a dying condition; sciousness of his condition may be inferred from the nature of his wound or from other circumstances. con 3. Criminal law 564 (3)-Venue established by circumstantial evidence. Venue may be established by circumstantial evidence. fact of levy, when, though defective in some particulars, they were sufficient for such pur landlord to show property levied on was that purchased from tenant. Where a distress warrant was levied on cotton in the possession of the claimant, but which the landlord claimed was the property of the tenant, the burden was on the landlord to Error from Superior Court, Thomas Coun- affirmatively show that the cotton levied on ty; W. E. Thomas, Judge. was the identical cotton purchased by the Mitch Jones was convicted of murder, and claimant from the tenant, whether he was seekhe brings error, Affirmed. J. M. Austin, of Thomasville, for plaintiff in error. Clifford E. Hay, Sol. Gen., of Thomasville, R. A. Denny, Atty. Gen., and Graham Wright, Asst. Atty. Gen., for the State. ing to enforce a special or only a general lien. Error from City Court of Swainsboro; Geo. Kirkland, Jr., Judge. Proceeding on a claim by Joe Ehrlich to property levied on in a suit by C. G. Jones. Judgment in favor of Jones, and the claimant brings error. Reversed. T. N. Brown, of Swainsboro, for plaintiff in error. Alfred Herrington, Jr., of Swainsboro, for defendant in error. GILBERT, J. [1, 2] 1. "'A prima facie case is all that is necessary to carry dying declarations to the jury. It is an issue of fact whether or not they were made in the immediate prospect of death.' Varnedoe v. State, 75 Ga. 181. It is not necessary that the person whose statements are sought to be in- BROYLES, C. J. [1, 2] 1. The court did troduced should express himself as believe- not err in admitting in evidence, over the obing that he is in a dying condition. Con- jections of the claimant, the forthcoming sciousness of his condition may be inferred bond given by the latter, or the entry of levy from the nature of his wound, or from other upon the distress warrant. This documentacircumstances. Young v. State, 114 Ga. | ry evidence, while defective in some particu849." Anderson v. State, 122 Ga. 162, 50 S. E. 47; Jones v. State, 130 Ga. 274, 60 S. E. 840. [3] 2. The evidence on the question of venue, though circumstantial, was sufficient. The verdict was supported by evidence. The lars, was sufficient to show the fact of levy, and was admissible for that purpose. Moreover, the claimant, having executed the forthcoming bond, and thereby obtained possession of the property levied upon, was estopped from denying the fact of levy, or from as 4. Costs 260(4)-Damages for delay granted, when motion for new trial palpably without merit, serting that for any reason the bond was in-ly authorized his account to be charged with valid. Smith v. Davis, 3 Ga. App. 419, 60 S. the amount shown to be due him, held insuffiE. 199; Smith v. Camp, 84 Ga. 117, 10 S. E. cient, under Civ. Code 1910, § 6086, requiring 539; Garner v. Clark, 115 Ga. 666, 42 S. E. a showing by the movant and each of his coun56; Peeples v. Garrison, 141 Ga. 411, 81 S. E. sel that the evidence could not be discovered 116, 51 L. R. A. (N. S.) 635; Hartshorn V.quiring affidavits as to the residence, associ by the exercise of ordinary diligence, and reBank of Gough, 15 Ga. App. 167, 82 S. E. 805. ates, means of knowledge, character, and credi[3] 2. In this case a distress warrant was bility of the witnesses to such newly discovered levied upon two bales of cotton in the pos- evidence. session of the claimant, which the landlord claimed was the property of his tenant, the defendant in fi. fa: Under the facts of the case, it is immaterial whether the landlord was seeking to enforce a special, or only a general, lien on the property, since in either case the burden was upon him to affirmatively make out his case by showing that the cotton levied upon was the identical cotton purchased by the claimant from the defendant in fi. fa. (Saulsbury v. McKellar, 55 Ga. 323); and he failed to carry this burden, as the evidence adduced, together with all legal deductions and inferences arising therefrom, failed to show this essential fact; and therefore the verdict, finding the property subject, was contrary to law and the evidence, and the court erred in overruling the motion for a new trial. Judgment reversed. LUKE and BLOODWORTH, JJ., concur. (26 Ga. App. 37) REED OIL CO. v. HARRISON. (No. 11735-6.) Where the extraordinary motion for a new force the conviction that the writ of error must trial was so palpably devoid of merit as to have been prosecuted for purposes of delay only, damages for such delay will be granted. Error from Superior Court, Colquitt County; W. E. Thomas, Judge. Action by the Reed Oil Company against H. H. Harrison, and plaintiff brings error, and defendant files Judgment for defendant, a cross-bill of exceptions. Judgment affirmed on the main bill, and cross-bill dismissed. Defendant was a traveling salesman for plaintiff on salary, expenses, and commission, but had resigned. The extraordinary motion for a new trial was for newly discovered evidence that he voluntarily authorized his account to be charged with the amount shown thereby to be due him, because of his poor showing. It was supported by the following affidavits: Affidavit of J. P. Stover that he was plaintiff's cashier and bookkeeper at a certain time, that he charged defendant's account with an item of $425.95, that the entry was made at the instance and request of defendant, and (Court of Appeals of Georgia, Division No. 1. that defendant at the time said the amount Dec. 15, 1920.) (Syllabus by Editorial Staff.) 1. New trial ~166(1)—Extraordinary motion will only lie for transactions not ordinarily occurring. in question had not been earned by him, because of his failure to turn in sufficient business. president and city salesman for plaintiff, Affidavit of John C. Rasberry, former vice Extraordinary motions for new trials will that defendant tendered his resignation givlie only for transactions which do not ordinari-ing as his reason that he could not make a ly occur in human affairs. success, and asking for a statement of his account; that when it was presented to him he voluntarily authorized the amount due on commission account to be charged back, his sales were not equal to his salary and as his statement showed that the profits on expenses. Affidavit of R. N. Reed, president of plaintiff, that he did not know of the existence of the subject-matter contained in Stover's affidavit, and through the exercise of all means at his command had no way of knowing of the existence of such evidence, at the time of the trial, and did not discover such evidence until a subsequent date. Another affidavit by the same person that (105 S.E.) the subject-matter of the affidavits of Stover and Rasberry was unknown to him at the (26 Ga. App. 9) FINLEY V. STATE. (No. 11653.) time of or prior to the trial, and he did not (Court of Appeals of Georgia, Division No. 1. discover the evidence contained therein un til a subsequent date. Nov. 11, 1920. Rehearing Denied (Syllabus by Editorial Staff.) 1. Criminal law 772 (3)-Charge of court as to date grand jury preferred indictment which alleged "191" not erroneous. Affidavit of one member of the firm of attorneys representing plaintiff that neither he nor the other member of the firm had any knowledge of the matters and things set out in the affidavits of Rasberry and Stover, or either of them, at the time of the trial or at any subsequent time, until a specified date.-leged that grand jury preferred indictment at Statement by editor. M. M. Holloway and Alvin L. Richards, both of Atlanta, for plaintiff in error. P. Q. Bryan, of Moultrie, for defendant in error. BROYLES, C. J. [1] 1. Cases contemplated by the statute in which extraordinary motions for new trials will lie should disclose transactions which do not ordinarily occur in human affairs. Cox v. Hillyer, 65 Ga. 57 (2). 2. "Ordinarily, cumulative and impeaching evidence is not ground for a new trial; but, when such a motion is made on the ground of newly discovered evidence, it must appear by affidavit of the movant and each of his counsel that they did not know of the existence of such evidence before the trial, and that the same could not have been discovered by the exercise of ordinary diligence. If the newly discovered evidence is that of witnesses, affidavits as to their residence, associates, means of knowledge, character, and credibility must be adduced." Civil Code 1910, § 6086. (Italics ours.) [2] 3. Extraordinary motions for new trials based on the ground of newly discovered evidence are viewed by the courts with even less favor than ordinary motions on that ground, and a stricter rule is applied to the former. Norman v. Goode, 121 Ga. 449, 49 S. E. 268. [3] 4. Applying these rulings to the facts of the instant case, no merit whatever appears in the extraordinary motion for a new trial, based solely upon the ground of newly discovered evidence, and the court did not err in overruling it. [4] 5. The extraordinary motion for a new trial is so palpably devoid of any merit whatsoever that it forces a conviction that the writ of error must have been prosecuted for the purpose of delay only, and the request of the defendant in error that he be allowed 10 per cent. damages for such delay is granted. Where an indictment for hog stealing al November term, "191," and that crime was committed on August 15, 1917, and indictment was filed November 20, 1917, charge was not erroneous in giving date of finding of grand jury as November term, 1917. 2. Larceny 70(3) Instruction permitting conviction for larceny of part of hogs mentioned in indictment not erroneous. Under an indictment for simple larceny charging in a single count the theft of two black barrow hogs and four sow pigs, an instruction that the state was not asking a conviction for the four hogs was not error because not requiring the state to prove material allegations made and other instructions, all of which confined the jury to the offense of stealing the two hogs, without regard to the other four mentioned in the indictment, also held not erroneous. Charge 3. Criminal law 782(9), 811(2) A charge stating that the contention of the state was that defendant took two black barrow hogs with intent to steal the same, and, if the jury believed from the evidence submitted on the trial and the defendant's statement that the contentions of the state are true, defendant should be convicted, was not erroneous as relieving the state of the burden of proving defendant's guilt to a moral and reasonable certainty and beyond a reasonable doubt, or erroneous as unduly stressing the contentions of the state. 4. Larceny 70 (3)-Instruction held not objectionable as not confining the jury to the two hogs alleged to be stolen. Under an indictment charging the larstating the contention of the parties and auceny of two black barrow hogs, an instruction thorizing a conviction if defendant took the two hogs or either one of them held not er roneous. 5. Larceny 72- Refusal of requested instruction relative to proof of value of hogs alleged to be stolen held not error. Under an indictment charging the larceny of two black barrow hogs about nine months old, marked with two straight splits in one ear and one straight split in the other ear, and four sow pigs, marked crop and underbit in one ear and underbit in the other ear, and said sow hogs being about nine months old and of the value of $60, refusal of a requested instruction that the value of the hogs alleged to have been LUKE and BLOODWORTH, JJ., concur. stolen and described in the indictment must be Judgment on the main bill of exceptions affirmed, with damages; cross-bill dismissed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |