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Bazemore vs. Davis.

of marriage, she was old enough to contract as to a marriage settlement. In reply to this position, it was insisted: 1st, That the infancy of the defendant, at the time the settlement was made on her, would prevent the operation of the estoppel; 21, that she could not be charged with the value of the entire estate in the property in which the proceeds of lot number six had been invested, because but a life estate therein had been conveyed to her; 3d, that if subject to account at all for the properly embraced in the Bazemore marriage settlement, she is only liable for that proportion of the proceeds of the aforesaid property which the value of the lot in controversy bears to the present value of the whole of lot number six. That if complainant has omitted to show what that entire value is, then she has failed in a material portion of her case, and the jury, not having the requisite data before them, cannot find any charge as against defendant.

The court instructed the jury as contended for by complainant, and refused to charge to the contrary.

13th, 14th. In the argument before the supreme court, counsel for complainant contended that on the second marriage of defendant, the title to all the property which came to her as remainderman under the Disharoon settlement, vested absolutely in her husband, notwithstanding the post-nuptial settlement made by him prior to the divorce; and that if this position was correct, then the defendant had no title upon which to maintain the action of ejectment sought to be enjoined. The determination of this question appears in the last two head-notes.

The jury found for the complainant and directed that the defendant be perpetually enjoined. The defendant moved for a new trial upon the ground that the court erred in each of his rulings and charges, as above stated, and also because the verdict was contrary to the law and the evidence. The motion was overruled, and defendant excepted.

R. F. LYON; A. O. BACON, for plaintiff in error.
LANIER & ANDERSON, HILL & HARRIS, for defendant.

Bazemore vs. Davis.

BLECKLEY, Judge.

1. It was not alleged that the matter of the amendment was improper, but only that the court should not have suggested it.

2. The caution to the jury was neither inappropriate nor ill-timed.

3. The judge stated to complainant's counsel that he did not wish them to argue the points of law, and would hear from the other side. The same points had once been argued before him on authority. Counsel for defendant insisted that complainant's counsel should furnish and read the authorities in the same manner as if they were to be used and commented on in conclusion. The judge declined to exact this, but said counsel for defendant might read any authority they thought proper.

4. The 4th head-note should be read in connection with the 4th point in the reporter's statement, which sets out what the judge said.

5. The interruption, as appears from the judge's notes in the record, was prohibited by denying to defendant's counsel the right to carry on a dispute with counsel addressing the jury. There seems to have been no appeal to the court to check any misrepresentation of the testimony. The judge called the interrupting counsel to order, and put an end to that method of interruption. He did not state to the jury which of the counsel was correct in representing the testimony, nor does it appear that he was requested to do so.

What he said to the jury on the subject appears, substantially, in the head-note.

6. The 6th bead-note upholds the charge of the court in reference to the record of the deed made by Disharoon. Even a proper record of that deed would not have been notice that its terms applied to property purchased with the proceeds of the property described therein, to a person ignorant of the fact that the proceeds had been so invested : 51 Georgia Reports, 296-7.

7. It seems that, in point of fact, the proceeds of the prop

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Bazemore vs. Davis.

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erty covered by the original trust deed made by Disharoon, were invested in that covered by the deed from Mosely to Reynolds, trustee; but the latter deed, instead of following the former in respect to the trusts declared, varied from it in this manner: The former declared an estate in trust for Mrs. Disharoon (afterwards Mrs. Page,) during her life, with remainder to her children, while the latter conveyed a fee simple estate in trust for Mrs. Disharoon and the heirs of Disharoon, her deceased husband. There is no doubt that heirs, here, meant children; and as there was but one child, namely, the daughter who afterwards married Bazemore, and is now the plaintiff in error, the mother and child were, under this deed, tenants in common. Such was the charge of the court.

8. The 8th head-note needls little or no expansion. By the terms "patent interest,” as used therein, is meant any interest appearing on the face of the two deeds conveying to the trustee the property in dispute, each deed being read as applying alone to that part of the premises which it conveys. Thus, Mrs. Bazemore's patent interest under one of the deeds is a tenancy in common, and under the other a remainder, as is held in this and the next preceding head-note.

9. On the supposition that there was surplus income, and that it was invested, the property in which it was invested belonged, pro tanto, to Mrs. Page, absolutely; and the ninth head-note states fully the law of the case as to that point.

10. The ordinary rule as to improvements made by one holding possession bona fide against the true owner is stated in 20 Story's Equity, sections 1237, 1238, and 5th Georgia Reports, 289. That rule seems to be that, neither at law nor in equity, in the absence of fraud or consent on the part of the owner, can the latter be forced to make compensation for the improvements. The exception recognized is, when he himself comes into equity and asks its aid to enforce his title; in which case, equity, in decreeing the relief, will require him to account for improvements. Notwithstanding the decided disapprobation expressed by Judge NISBET, in 5th Georgia

Bazemore vs. Davis.

Reports, supra, to restricting the exception within such narrow limits, we are not aware that any distinct enlargement of it has been established. As between tenants in common, where one has held out the other, ignorantly believing himself sole owner, and, pending such exclusion, has made permanent improvements, the co-tenant, unless he resorts to equity himself, cannot be compelled to contribute anything for the cost or value of the improvements, beyond such portion of the rents as may be chargeable to the party erecting them. This is the general rule of adjustment between improvements and mesne profits : Code, sections 2906, 3468; 9 Georgia Reports, 440; 39 Ibid., 328; 47 Ibid., 540.

11, 12. The head-notes eleven and twelve are so ample that it would be a waste of time and space to enlarge upon them.

13, 14. When Bazemore and wife were married the second time, the old law prevailed touching marital rights in the wife's property. It was prior to the reformation brought in by the act of 1866. On the second argument of the case before this court, the point was discussed as to the effect of the previous divorce and of that marriage on the property now in dispute. The position was assumed, that, as the first coverture was dissolved, the trust established by Bazemore in behalf of his wife, ceased as to the life estate to be enjoyed by her; that the estate became her own, divested of the trust; and that, upon the second marriage, it passed to her husband in virtue of his marital rights. What effect on this particular case such a transmigration of the title would have had, need not be considered. We think it clear that the trust adhered to the property and operated during the second coverture, just as it did during the first. The debts of the husband against which the property was to be protected, were апу debts that he might contract, not simply those which might be contracted while a particular coverture subsisted; and the remainder to children was in behalf of any children she might bear by him.' Both debts and children might come into existence after the first coverture terminated, and thus

Nolan vs. The State of Georgia.

the purposes of the trust were not necessarily accomplished when the parties were divorced. On the general subject, see the following cases, and the authorities therein cited : 11 Georgia Reports, 379; 12 Ibid., 195; 14 Ibid., 403; 15 Ibid., 123; 3 Bac. Ab., 438.

Judgment reversed.

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John H. NOLAN, plaintiff in error, vs. THE STATE OF

GEORGIA, defendant in error. 1. When the accused is put on his trial for a capital offense, and the jury

sworn and charged, if the indictment is not defective, he is in jeopardy of

his life: 3 Kelly, 63. 2. Two reasons only are recognized by the law as justifying the discharge of

the jury before they have agreed upon a verdict and legally returned it into court, to-wit: the prisoner's consent, or necessity in some of its various forms, one of which is mistrial: 14 Georgia Reports, 426; 15 Ibid., 562 ;

23 Ibid., 1 ; 33 I bid., 329; 3 Kelly, 53; 2 Ibid., 60. 3. There being no authority of law for receiving a verdict of guilty and dis

charging the jury, without the prisoner's consent and without necessity, whilst he is absent involuntarily from the court, confined in jail, to do so is to deny him the right of having the voice of his jury authentically pro

nounced upon his guilt or innocence. 4. A verdict so received, having been, on his motion, set aside as illegal, when

afterwards arraigned for trial on the same indictment for the offense before another jury, the prisoner may plead specially his former jeopardy in bar of a second trial, and if supported by the record and the extrinsic facts, the plea should be sustained, and, thereupon, the prisoner should be dis

charged. 5. His motion to set aside the verdict for such cause is distinguishable from a

motion for a new trial, and consequently, does not subject him to be again put in jeopardy as though a new trial had been applied for and granted. In the present case a new trial was not a necessary incident of setting aside the verdict, and in point of fact, was neither applied for by the party nor expressly ordered by the court. The former jeopardy is clear, and the prisoner's claim to protection comes within the declaration of fundamental principles in the constitution of 1868: Code, section 5000.

Criminal law. Verdict. Jury. New trial. Before Judge TOMPKINS. Chatham Superior Court. November Term, 1874.

VOL. LV. 34.

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