The appellee, Trentha Joyce Holtzclaw, is the appellants' mother. The children's parents were divorced in 1971 and the appellee was awarded the marital residence subject to an estate for years in the six children until the youngest became 21. 1
The first time this case appeared before this Court, the children asserted that the mother abandoned them and gave them the property in 1979. They sought a declaration of title to the house, and after the trial court granted a judgment on the pleadings to the mother, the children appealed. In Sims v. Holtzclaw, 259 Ga. 537
, 540 (384 SE2d 656
) (1989), this Court held "the children's claim, based on OCGA 45-5-85
, stated a claim against the mother and judgment on the pleadings should not have been granted."
The case went to trial on May 14, 1990, and the trial court granted the appellees' motion for a directed verdict at the conclusion of the appellants' evidence. We reverse.
1. The trial court order in this case stated three grounds for granting the motion. 2
Considering each ground within this division we find that the trial court apparently accepted the appellees' argument that the land did not belong to the mother at the time of the alleged gift to the children. However, we had already held that the children's claim based on OCGA 45-5-85
stated a claim against the mother. Sims, supra at 540. Additionally, "[a] remainder is an estate in land, and whether vested or contingent, may be freely assigned and conveyed." Ga. Real Est. Law, 7-53, n. 3 (3d ed.). A vested remainder is a present estate, only the possession is postponed. OCGA 44-5-40
. At the time of the alleged gift, the mother had an assignable estate in land with only possession of the estate postponed.
Because there were conflicts in the evidence as to material issues, and the evidence introduced, with all reasonable deduction therefrom, did not demand a verdict for the appellees, OCGA 9-11-50
(a), the trial court erred in directing a verdict at the conclusion of the appellants' evidence.
2. We agree with the appellants that the trial court erred in reinstating the intervenors' Yost counterclaim. This Court in Sims, supra, found that the appellants had a valid claim; additionally, a third party who voluntarily inserts himself in an ongoing action cannot file a Yost claim.
Stewart, Melvin & House, Frank W. Armstrong, Dimmock & Hill, J. Carey Hill, Thompson, Fox & Chandler, Robert B. Thompson, for appellees.