Mrs. Joe H. Parker in her own behalf and as executrix of the estate of Joe H. Parker, deceased, brought fictitious ejectment against Mrs. Rufus G. Parker, Rufus Grover Parker, Leonard Parker, and Rickey Joe Parker, seeking to recover possession of described premises and mesne profits for a specified period of time. Answering the petition, the defendants denied that they were wrongfully in possession of the property and that they were due the plaintiffs any amount for mesne profits. The pleadings, a stipulation, and the evidence make the following case: The defendants are the widow and minor children of Rufus G. Parker, deceased, who was the son of Joe H. Parker and Mrs. Joe H. Parker. Joe H. Parker gave the land here involved, consisting of one acre and having a value of $50, to Rufus G. Parker, his son, and Mrs. Joe H. Parker had actual knowledge of such gift and ratified it by acquiescence. Rufus G. Parker immediately accepted the gift, took actual possession of the land, erected a five-room dwelling house on it in 1949, and thereafter placed other permanent improvements on it at a total cost to him of $6,000, all of which was done with the knowledge of his parents. While making such improvements, his parents advanced some of the money expended for labor and materials, and he later reimbursed them in full for such advancements. He lived on the lot and had exclusive possession of it from the date it was given to him until his death on March 8, 1956, except for a short period of time while his family resided in Jackson County, Georgia. He paid no rents to anyone for the use of the land, and from the date it was given to him until the date of his death he returned it for taxes in his own name and paid all taxes assessed against it. The record also shows that Rufus G. Parker took actual bona fide possession of the land in 1949, when it was given to him by his parents; that from 1949 to 1956 he spent $6,000 in erecting permanent improvements on it; that the defendants, as his widow and three minor children, presently have actual bona fide possession of it and use it as their home; and there is a prayer that they, as his sole and only heirs at law, have judgment against the plaintiffs for the amount so expended by him for such improvements less the value of mesne profits, if the jury finds that they are not the downers of the land. After the death of Rufus G. Parker, the lot with the improvements thereon was by a proceeding in the Court of Ordinary of Hall County, Georgia, set apart to the defendants, as his widow and minor children, as a year's support; and though Mrs. Joe H. Parker, individually and as executrix of the estate of Joe H. Parker, deceased, had notice and actual knowledge of the proceeding, she filed no objection to it. There was no demurrer either to the amended petition or to the answer as amended. The parties stipulated that Joe H. Parker and Mrs. Joe H. Parker jointly acquired title to the land involved from Gainesville National Bank on November 1, 1940; that its rental value was $20 per month; and that the defendants were the sole and only heirs at law of Rufus G. Parker, deceased. At the close of the evidence for both sides, the court directed a verdict in favor of the plaintiffs for the premises sued for and $20 per month as mesne profits from October 2, 1956. The defendants moved for a new trial on the usual general grounds only, and their motion as thus made was denied. In due time the defendants presented and caused to be certified
a bill of exceptions in which they assigned error on the judgment refusing them a new trial, and on the action of the court in directing the verdict. The latter assignment recites that the evidence made issues of fact, which the trial judge should have submitted to the jury for determination, and for that reason the action of the court in directing the verdict was erroneous. Held:
2. It is erroneous for the trial judge to direct a verdict, except where there is no conflict in the evidence introduced as to the material facts, and the evidence introduced with all reasonable deductions or inferences therefrom demands a particular verdict. Code 110-104; Norris v. Coffee, 206 Ga. 759
(58 S. E. 2d 812). And where there is a material conflict in the evidence upon an aterial issue, the trial judge cannot usurp the province of the jury and instruct them to render a given verdict. Duncan v. Mayfield, 209 Ga. 882
(76 S. E. 2d 805). This long-established rule is plain and should never be extended beyond the literal meaning of its words. Williams v. State, 105 Ga. 814
(32 S. E. 129, 70 Am. St. R. 82).
3. "A donee of land under a parol gift, who in pursuance thereof enters into possession with the consent of the donor, and makes valuable improvements upon the faith of the gift, acquires such a perfect equity in the premises as that, upon a suit in ejectment against him by the donor or his heirs at law, he may by proof of these facts, successfully defend his possession; and a plea setting up such equity should not be stricken on demurrer, even though it contain no prayer for specific performance." Floyd v. Floyd, 97 Ga. 124 (2) (24 S. E. 451); Ogden v. Dodge County, 97 Ga. 461 (1) (25 S. E. 321). Our statement of this case fully sets out the defendants' contention respecting an oral gift of the land sued for, the acceptance of the gift by their predecessor in title, and the character and value of improvements he placed on the land after taking actual possession in 1949; and the defendants' evidence, as we view it, was sufficient to have authorized a finding by the jury that these averments were true; though, in view of the plaintiffs' evidence to the contrary, it did not demand such a finding in their favor. In these circumstances, the trial judge should have submitted this theory of their defense to the jury for determination.
4. "In all actions 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 the improvements over the mesne profits." Code 33-107; Hawks v. Smith, 141 Ga. 422 (4) (81 S. E. 200). In this case the evidence demanded a finding by the jury that valuable improvements, permanent in character, were erected on the land sued for subsequently to 1949 and prior to the day on which Rufus G. Parker died and while he was in actual possession of it under a claim adverse to that asserted by the plaintiffs. The defendants also introduced evidence which would have authorized, but which--because disputed by the plaintiffs' evidence--did not demand, a finding by the jury that Rufus G. Parker placed such improvements on the land after it had been given to him by his parents; that the cost of such improvements to him was $6,000; and that the value of such improvements was an amount in excess of the stipulated rental value of the property sued for. On this point the evidence, therefore, made an issue of fact which it was the province of the jury to settle.
5. For the reasons stated in the preceding divisions, the trial judge erred in direc 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 the improvements over the mesne profits." Code 33-107; Hawks v. Smith, 141 Ga. 422 (4)o a business is certainly not decisive as to whether a resulting profit is ordinary income or capital gain. One may conduct a business through others, his agents, representatives, or employees. The business is nonetheless his because he chooses to let others bear all of the burdens of management." In the Boeing case it was held that Boeing was engaged in the business of "selling logs," and that the income derived therefrom was income from a trade or business.
It is provided by the lease in the present case that no title shall pass until the wood is cut, that it is to be sold by the cord, and that a cord shall contain 128 cubic feet of rough, stacked wood. Counsel for the taxpayer in their brief quote headnote 3 from the decision of this court in Clarke Bros. v. McNatt, 132 Ga. 610 (64 S. E. 795), as follows: "A contract of sale in regard to timber which is attached to the soil, but which is presently to be severed therefrom and converted into personalty before the title is to pass to the purchaser, is an executory sale of pers constitutional question. Toombs Superior Court. Before Judge Whaley from Oconee Circuit. June 23, 1958.
The judgment under review is an order overruling general and special demurrers to a petition seeking damages for an alleged illegal arrest, and is before this court for the reason that the constitutionality of a State statute (Ga. L. 1958, p. 114) was drawn into question.
Ronald Lowe filed his action in Toombs Superior Court against W. Claude Sharpe, formerly the Sheriff of Montgomery County and now a resident of McIntosh County, Georgia, and United States Fidelity and Guaranty Company, alleged to have an agent, office, and place of business in Toombs County. The basis of the action, as finally amended, was that a deputy of Sharpe, while he was Sheriff of Montgomery County, illegally arrested and falsely imprisoned the plaintiff. Damages and attorneys' fees were sought to be recovered. It was alleged that the resident defendant was the surety on Sharpe's bond at the time of said arrest.
1. The original petition contained two counts, to which general and special demurrers were filed by the defendants. Before these demurrers were considered by the court, the plaintiff reduced his petition to one count. The defendants thereupon renewed their general and special demurrers, and among several additional grounds asserted that the court was without jurisdiction and that the Superior Court of McIntosh County had jurisdiction. The assertion and contention was based upon an act of the General Assembly of Georgia approved March 4, 1958 (Ga. L. 1958, p. 114), which amended Code 56-601 (as amended by the act of 1957, Ga. L. 1957, p. 645), said amendment providing: "Provided further, that any action or suit on the bond of a sheriff, or other arresting or law enforcement officer, upon which any guaranty or surety company or fidelity insurance company is bound and obligated as surety, shall be instituted in the county of the residence of such officer, and not in any other county; and the county of the residence of such officer is hereby fixed as the venue of any action or suit on such bond . . ."
The plaintiff thereupon filed an amendment to his petition in which he alleged that the act of 1958 amending Code 56-601 was not applicable because his action had been instituted on December 31, 1957, and the suit was pending at the time the amendment was approved on March 4, 1958. He further asserted that, if the amendment was applicable to pending actions, it was unconstitutional as being in violation of certain enumerated provisions of the Constitution of Georgia prohibiting retroactive laws, and of those provisions for suits against joint obligors and joint trespassers.
The trial court, in overruling the general demurrers to the amended petition, held that the amendment of 1958 was not applicable to the action and in the alternative that, even if it was applicable, it was unconstitutional and void as applied to plaintiff's suit.
The plaintiffs in error contend that the amendment of 1958 does apply to suits pending at the time of its enactment, and that the amendment affects the remedy only and is not retroactive so as to impair any rights of the plaintiff.
Code 56-601, as amended by the act of 1957 (Ga. L. 1957, p. 645), relates to the venue of suits against insurance companies. At the time the instant action was filed, it provided that any person, having a claim or demand on any insurance company, "may institute suit . . . in any county where the company shall have an agent or place of doing business." This court in Carian v. Fidelity & Casualty Co. of New York, 183 Ga. 715 (189 S. E. 527), held that a sheriff and the surety on his official bond could be sued for an alleged wrongful act of the sheriff in any county where the surety had an agent, office, and place of business, though it not be the county of the sheriff's residence. Code 56-601, as amended by the act of 1957 (Ga. L. 1957, p. 645), clearly shows that the statute had only a prospective operation. Laws prescribe only for the future. Code 102-104. There are no words in the amendment of 1958 that require it to be given a retrospective application, and therefore it must be construed to have only a prospective application. Federal Deposit Ins. Corp. v. Beasley, 193 Ga. 727 (2) (20 S. E. 2d 23). The amendment of 1958 to Code 56-601 having no application to suits pending at the time of its passage, it is unnecessary to pass on its constitutionality.
2. The defendants assert that the amended petition fails to set forth a cause of action for the alleged illegal arrest because it contains no allegations that, at the time of the arrest, the plaintiff (a) was not endeavoring to escape, and (b) there was not likely to be a failure of justice for want of an officer to issue a warrant. In his amended petition, the plaintiff alleged that, at the time he was arrested, he had not committed any act in violation of any law, had committed no act or crime in the presence of the officer who had no warrant for his arrest, and that his arrest and imprisonment were wrongful, illegal, malicious, and without probable cause. Whether any of the grounds for a legal arrest without a warrant, as provided for in Code 27-207, existed at the time of the alleged arrest of the plaintiff, is a matter of defense. Franklin v. Amerson, 118 Ga. 860 (45 S. E. 698). "Whoever arrests or imprisons a person without a warrant is guilty of a tort, unless he can justify under one of the exceptions prescribed by law; and the burden of proving that the case lies within the exception rests upon the person making the arrest or inflicting the imprisonment." Piedmont Hotel Co. v. Henderson, 9 Ga. App. 672, 680 (72 S. E. 51).
There is no merit to this ground of the demurrer.
3. In his amended petition the plaintiff alleged that he, "because of his said illegal arrest, and because of the false imprisonment and detention, and because of the conduct of the said officer, sustained little or no actual monetary damages, yet he is entitled to damages for the breach of the said bond in such amount as may be reasonable and just, taking all the circumstances and facts into consideration, and also in addition to his said damages, he is entitled to recover his attorneys' fees, all as provided by law as described in section 89-421 of the Code of Georgia." The defendants by way of special demurrer assert that the plaintiff is not entitled to recover both smart money and the reasonable expenses of his suit.
Code 89-421 provides: "The measure of damages recoverable in actions upon all official bonds for the misconduct of the officer, unless otherwise specially enacted, shall be the amount of injury actually sustained, including the reasonable expenses of the suit to the plaintiff besides the costs of court; but in all cases when little or no damage is actually sustained, and the officer has not acted in good faith, the jury my find for the plaintiff in amount as smart money, which, taking all the circumstances together shall not be excessive nor oppressive."
The amended petition alleged that the arresting officer acted in bad faith. In construing this Code section in the case of Glens Falls Indemnity Co. v. Dempsey, 68 Ga. App. 607, 612 (23 S. E. 2d 493), where a recovery of smart money and attorneys fees was sustained, the court said: "The section does not demand the conclusion that where smart money is recoverable there cannot be a recovery for expenses of litigation and costs of court, but the section is susceptible of the construction that where the damages show so-called smart money there can still be a recovery for the reasonable expenses of the suit to the plaintiff, which necessarily include attorney's fees." In our opinion such construction is sound. The amended petition is not subject to the objection that, in a suit for smart money under Code 89-421, attorneys' fees cannot be recovered.
It was not error to overrule the general and special demurrers of the defendants.
DUCKWORTH, Chief Justice, dissenting. I dissent as to division one and the corresponding headnote and to the judgment of affirmance, upon the grounds that I think the amendment deals solely with jurisdiction and venue and is not retroactive, but is within the constitutional power of the legislature to enact, and does not impair the rights of any party in any cause. Mr. Justice Candler joins me in this dissent.
ON MOTION FOR REHEARING.
Counsel for the plaintiffs in error in their motion for rehearing insist "that the court in this case did not seek to find the legislative intent as expressed from the statute [Ga. L. 1958, p. 114], but erroneously applied a rule of statutory construction dealing with situations where parties have previously acquired [a] vested right."
The history of the act of 1958, amending Code 56-601, may be referred to as tending to aid in the construction to be given the statute. Mayor &c. of Savannah v. Hartridge, 8 Ga. 23 (2)
. We take judicial notice of the journals of each branch of the General Assembly ( Stanley v. Sims, 185 Ga. 518
, 195 S. E. 439), it being the duty of the court in the construction of statutes to give effect to the intention of the legislature when it is ascertainable. Thompson v. Eastern Air Lines, 200 Ga. 216
, 222 (39 S. E. 2d 225); Moore v. Baldwin County, 209 Ga. 541
, 545 (74 S. E. 2d 449). Compare Mosley v. Lanier, 213 Ga. 373 (2)
(99 S. E. 2d 118). Events occurring during the progress of the enactment of a statute as disclosed by the official journals of the General Assembly may be reviewed in seeking to find the intent of the legislature. 2 Sutherland, Statutory Construction, 5001-5016 incl.
There being no basis to assume that section 2 was stricken as surplusage, the rejection of this section as contained in the bill as originally introduced is strong evidence that the legislature did not intend for the omitted matter to be effective. Federal Trade Commission v. Raladam Co., 283 U. S. 643 (51 Sup. Ct. 587, 75 L. ed. 1324, 79 A.L.R. 1191); Wright v. Vinton Branch of the Mountain Trust Bank of Roanoke, Virginia, 300 U. S. 440 (57 Sup. Ct. 556, 81 L. ed. 736, 112 A.L.R. 1455); Mayo v. American Agricultural Chemical Co., 101 Fla. 279 (133 So. 885); State Board of Barber Examiners v. Walker, 67 Ariz. 156 (192 Pac. 2d 723); Nelson v. Westland Oil Co., 96 Fed. Supp. 656 (2).
In our opinion the legislative history of this statute discloses an intent on the part of the General Assembly not to make the act applicable to pending suits.
Motion for rehearing is denied.