Grace v. Martin

1. There was sufficient evidence to sustain the verdict. 2. The ground for new trial that the plaintiff, who was one of his own attorneys in the case, a short time before the trial embraced two of the traverse jurors then in service (their names not being mentioned), putting his arms around both their necks at the same time, is not sustained by evidence. 3. That the plaintiff furnished soda-water to two of the jurors who tried the case after they had been discharged for the term, because they complained of feeling sick, does not require a new trial. (a) It was not error for the court to strike from this ground the words, “said treating not being casual, but part of a regular system of caressing and entertaining traverse jurors during the terms of the court which has been practiced by the said Martin for years,” and to refuse to hear evidence to sustain the charge contained therein, it being too general and referring to conduct, not at tbe term of this trial, but at terms for years past. 4. That the plaintiff furnished a witness summoned in his behalf with dinner, the witness being without money and unable to obtain it otherwise, is not cause for a new trial. This could only go to the credit of the witness before the jury. 5. Where'long extracts from the charge of the court are excepted to, the plaintiff in error must specify what parts of them are erroneous or inapplicable. If this be not done, and some parts be applicable, a new trial will not be granted because of such charges. 6. In an action of complaint for land, a verdict for the plaintiff for the land in dispute is not too indefinite and uncertain, the land being fully described in the declaration by metes and bounds, numbers of feet, etc. The clerk, in issuing the writ of possession, can copy this description therein. 7. The discretion of the judge in refusing to entertain an affidavit handed to him in the street after the evidence on the motion for a new trial had been closed and the argument heard, was not abused.

New trial. Evidence. Verdict. Attorneys. Witness. Charge of court. Practice. Before Judge Kibbee. Pulaski superior court. May term, 1888. J. H. Martin brought his action of complaint for land against M. T. Grace, for a tract of land in block E in the town of Hawkinsville, commencing at the northeast corner of the building known as the Dawson & Clark old office, and sold by W. H. Hendley to M. T. Grace, the father of the present M. T. Grace, said lot fronting on the south side of Commerce street, and from said point of commencement running south on the line of the east side of said building and parallel with Houston street 100 feet, then west as far as the land of M. T. Grace extends ; the lot being all the land sold by W. H. Hendley to M. T. Grace on November 27, 1869, etc., and that lies 100 feet south of the south line of Commerce street and on the west of a line drawn 100 feet south from northeast corner of the said Dawson & Clark building on a line with the east side of said building and parallel with Houston street. The abstract of title attached to the declaration was, “deed to the premises sued for from M. T. Grace to J. H. Martin, dated June 10,1887.” Various pleas were filed by the defendant, in addition to the plea of the general issue, which may be summed up as follows: Martin owned a lot fronting 25 feet and 10 inches on the south side of Commerce street and running back 70 feet, on which was a small wooden building occupied by him as a law office. Defendant and his brother, W. J. Grace, owned the lands on each side of said office lot immediately in the rear thereof, and also a piece of land 27 by 160 feet immediately in the rear of the office lot of Dr. A. A. Smith, the said office lot of Dr. Smith adjoining the lot of defendant. W. J. Grace owned the storehouse and lot on the corner of Commerce and Houston street, and the defendant, M. T. Grace, owned the storehouse and lot immediately west of and adjoining the office lot of said Martin. In order to throw the two lots of defendant and his brother together, defendant agreed with plaintiff to take the office lot of plaintiff in exchange for a lot west thereof, fronting 29 feet and 10 inches on Commerce street and running back south 100 feet, plaintiff thus getting the advantage of about 30 feet square in the trade. Plaintiff proposed to write the deed in order to save expense, to which defendant agreed, and the deeds were written by plaintiff. Defendant having lately become of age, and plaintiff having been of counsel' for his mother and her estate and having boarded in the family of his mother, defendant had great confidence in his skill and integrity. Instead of writing the deed according agreement, plaintiff wrote it in such a way as to include 27 by 50 feet in the rear of Dr. Smith’s office, and so to get eight inches fronting on Commerce street more than he was entitled to; the cutting' off of this eight inches made it impossible for defendant to move his storehouse, which was thirty feet and six inches front from the lot received from Martin, said removal being one of the main objects of the exchange, and so announced to Martin. In consequence of his employment as attorney for said estate and from his examination of its papers and affairs, Martin knew that said lot in rear of Smith’s office had been assigned to defendant in the division of the estate; but as it was a vacant and unenclosed lot, defendant did not know it had been assigned to him, and Martin knew that defendant was ignorant of his rights in the matter. The deed from defendant to Martin included land in excess of the agreement in the value of $200 or other large sum. Defendant alleges that he did not know, when he signed the deed, that it contained more land than the contract agreed on called for because he did not examine it critically, and written artfully as it was, it would have been difficult to discover the fraud in the writing, but defendant signed it without close examination, and would not have signed it if he had known its real tenor and effect. The defendant prayed for a rescission of the whole of the contract between himself and Martin, and for general relief. The evidence adduced upon the trial of the case was directly conflicting upon the main point in controversy, to wit, as to whether Martin abused confidence reposed in him by Grace, and thus obtained a conveyance from Grace for more land than had been agreed between them should be so conveyed. Of the evidence for the defendant it may be generally stated that it tended to sustain the allegations in his pleas. The evidence for the plaintiff tended to show that Martin had positively refused to take in exchange for his lot a lot of 29 feet and 10 inches front on Commerce street; that the deed as written was in accordance with the final agreement of the parties; that Grace did know of his rights to the land in the rear of Smith’s office; that a diagram was drawn and shown to him of the proposed conveyance hy Martin, and the deed was drawn in accordance with this diagram, to which Grace consented ; that the deeds were drawn hy Martin to save expense; that after they were drawn and before they were signed, Grace carefully read both the deed from him to Martin and from Martin to him ; that he asked why Martin did not say how far west the land should extend, and Martin told him he had drawn the deed exactly as the trade was made and did not' wish any squabbles about lines, for he did not know where the lines were, etc., and the way the deeds were drawn the house on the land went with it; that Martin then prepared a written agreement giving to each one a right to move the houses off the lots by the first of July thereafter, and the deeds were then signed; that Martin made no representation to defendant of any kind to mislead or deceive him ; that he did not know the exact width of defendant’s house, but has since measured it and found it to be 30 feet and 4 inches ; that Martin thought at the time of the trade that there was some land behind Dr. Smith’s office, but did not and does not know how far south the line of Dr. Smith’s lot extends; that Martin has never represented defendant in any litigation, or the defendant’s father, hut did represent to some extent the estate of defendant’s mother ; that it was a part of the trade that a party wall should be erected between the two lots exchanged, half the ground for which each party was to furnish, and if that wall were built there would not have been enough land left for the house of Grace if he had got the six inches now claimed by him ; that Grace furnished Martin the deed from W. H. Hendíey to the father of Grace to guide Martin in drawing the deed .in question ; and that the first positive information that Martin got as to the land in the rear of Smith’s office was from that deed, though he had thought before' that Grace owned some land there, but did not feel under any obligation to communicate his thought to Grace. About the fact that the house which was on the lot traded by Grace to Martin could not be removed and placed on the lot traded by Martin to Grace under the deeds as drawn, on account of narrowness of the latter, there was no dispute ; nor was there any dispute as to the fact of an agreement at the time of the making of the deeds that the parties should each have the right to move the houses from their respective lots, exchanged at that time. One Hugh Barron testified, for plaintiff, that he heard a conversation between his father and defendant in the presence of Martin and another, in which his father told defendant that the trade between him and plaintiff* was, that they were to swap lots, and that plaintiff was to have from the northeast corner of said lots running back 100 feet, and Grace did not deny this; said that this was the trade, but he did not know he had so much land behind Smith’s office at the time of the trade. This witness also testified that he did not remember whether, in the conversation mentioned, anything was said about the frontage of the lots, and he did not remember positively where his father said the measurement was to commence. On cross-examination, he said that he was positive his father said that the description was to commence at the northeast corner of the Clark & Dawson lot and run as stated in the deed. Martin had previously testified that Hugh Barron, Sr., who is now dead, and Grace and himself were all the persons present when the trade was really made, but that Barron was not present when the deed was drawn and signed. The deed of Hendley to Grace above referred to was put in evidence, the laud conveyed in it being described as fronting 30 feet more or less on the south side of Commerce street and running back 210 feet, also containing all the land on the lot adjoining it oh the west, and now occupied by A. T. Burke as a law office, (the Burke office, it appears from the testimony, was the same office as that heretofore mentioned as the office of Dr. Smith,) except the front part of said lot which was deeded by Thos. Dawson and C. E. Clark to other parties, the above described land being the house and lot formerly occupied by Thos. II. Dawson and Dr. C. E. Clark as offices, etc. The deed from Grace to Martin was also in evidence, as was that from Martin to Grace. The description of the land in the former was the same as the description in the declaration. The jury returned the following verdict: “We, the jury, find for plaintiff for the land in dispute and recommend that the defendant have ninety days to move the house off the premises, and also rent up to time of the removal of the house.” The defendant moved for a new trial on the grounds stated in the opinion and the second head-note. This motion being overruled, he excepted.